EVIDENCE

EVIDENCE

EVIDENCE
TABLE OF CONTENTS

1 OVERVIEW OF EVIDENCE  1
1.1 WHAT IS EVIDENCE LAW?  1

1.2 WHAT LAW APPLIES ON THE BAR EXAM?  1

1.2.1 Applicability of Federal Rules  1
a. When Federal Rules Do Not Apply  1

2 RELEVANCE  3
2.1 BASIC PRINCIPLES  3
2.1.1 Definition of Relevance  3
2.1.2 General Rule of Admissibility  3
2.1.3 Rule 403 (Court’s Discretion to Exclude Relevant Evidence)  3

2.2 SIMILAR OCCURRENCES  4

2.2.1 Plaintiff’s Accident History—Prior False Claims or Same Bodily Injury   4
2.2.2 Similar Accidents or Injuries Caused by Same Event or Condition   5
a. Absence of Similar Accidents   6
2.2.3 Previous Similar Acts Admissible to Prove Intent   6
2.2.4 Sales of Similar Property   6
2.2.5 Rebutting Claim of Impossibility   6
2.2.6 Causation   7
2.2.7 Habit and Business Routine Evidence   7
a. Distinguish Character Evidence  7
2.2.8 Industry Custom as Evidence of Standard of Care   9

3 PUBLIC POLICY EXCLUSIONS  10

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3.1 LIABILITY INSURANCE  10

3.2 SUBSEQUENT REMEDIAL MEASURES  11

3.3 CIVIL SETTLEMENTS AND SETTLEMENT NEGOTIATIONS  12

3.3.1 Disputed Claim Required  13
3.3.2 Limited Exception to Rule—Civil Dispute with Government Authority  13

3.4 PLEA DISCUSSIONS  14

3.5 PAYMENTS OF AND OFFERS TO PAY MEDICAL EXPENSES  14

4 CHARACTER EVIDENCE  16
4.1 TYPES OF CHARACTER EVIDENCE  16
4.1.1 Methods of Proving Character   16

4.2 DEFENDANT’S CHARACTER IN CRIMINAL CASE  17

4.2.1 How Defendant Proves Character   17
4.2.2 Prosecution’s Options—Cross-Examination of Defendant’s Character Witness
and Rebuttal  18

4.3 VICTIM’S CHARACTER IN CRIMINAL CASE  19

4.3.1 When Defendant Can Initiate  19
a. Prosecution Rebuttal  20
4.3.2 When Prosecution Can Initiate—Rebutting Self-Defense Claim in Homicide
Case  21
4.3.3 Rape Victim’s Past Behavior Generally Inadmissible   21
a. Exceptions in Criminal Cases   21
b. Exceptions in Civil Cases   22

4.4 CIVIL CASES—GENERALLY NOT ADMISSIBLE  22

4.4.1 Admissible When Character Directly in Issue  22

4.5 OTHER MISCONDUCT FOR NON-CHARACTER PURPOSE  23

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4.5.1 General Rule—Other Misconduct Inadmissible  23

4.5.2 Admissible If Independently Relevant (MIMIC Evidence)  24
a. Requirements for Admissibility   26

4.6 DEFENDANT’S SIMILAR MISCONDUCT IN SEX-CRIME CASES  27

5 AUTHENTICATION, WRITINGS, AND REAL EVIDENCE  28

5.1 AUTHENTICATION OF WRITINGS AND SPOKEN STATEMENTS  28
5.1.1 Methods of Authentication   28
a. Opponent’s Admission   28
b. Eyewitness Testimony   28
c. Handwriting Verifications   28
d. Ancient Documents   29
e. Reply Letter Doctrine   30
f. Photographs and Videos   30
g. X-Ray Pictures, Electrocardiograms, Etc.   31
5.1.2 Compare—Authentication of Oral Statements   31
a. Voice Identification   31
b. Telephone Conversations   31
5.1.3 Self-Authenticating Documents   31

5.2 BEST EVIDENCE RULE  32

5.2.1 Applicability of Best Evidence Rule   32
a. When Rule Applies  32
b. When Rule Does Not Apply—Witness Has Personal Knowledge of Facts  33
5.2.2 “Originals” and Admissibility of “Duplicates”   35
5.2.3 Admissibility of Secondary Evidence of Contents   35
a. Excuses for Non-Production of Original   35
b. No Degrees of Secondary Evidence   36
5.2.4 Exceptions to Best Evidence Rule  36
a. Summaries of Voluminous Records   36

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b. Certified Public Records   36

c. Writing Is Collateral to Litigated Issue   36
d. Testimony or Written Admission of Opponent  36
5.2.5 Functions of Court and Jury   36

5.3 REAL EVIDENCE  37

5.3.1 General Conditions of Admissibility  37
a. Authentication   37
b. Condition of Object   37
5.3.2 Particular Types of Real Evidence  37
a. Reproductions and Explanatory Real Evidence   38
b. Maps, Charts, Models, Etc.   38
c. Demonstrations   38
d. Exhibition of Injuries   38
e. Jury View of the Scene   38

6 WITNESSES  39
6.1 COMPETENCY OF WITNESSES  39
6.1.1 Federal Rules of Competency   39
6.1.2 Modern Modifications of the Common Law Disqualifications   39
a. Children—Case-by-Case Determination  39
b. Insanity   39
c. Judge and Jurors   40
6.1.3 Dead Man Acts   40

6.2 FORM OF QUESTIONING  41

6.2.1 Leading Questions   41
6.2.2 Scope of Cross-Examination  42
6.2.3 Improper Questions and Answers   42

6.3 USING DOCUMENTS TO AID ORAL TESTIMONY  42

6.3.1 Refreshing Recollection—Present Recollection Revived   42
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a. Safeguards Against Abuse—Adverse Party’s Options   43

6.3.2 Past Recollection Recorded—Recorded Recollection   44

6.4 OPINION TESTIMONY  45

6.4.1 Opinion Testimony by Lay Witnesses   45
a. Requirements  45
b. Situations Where Opinions of Lay Witnesses Are Admissible   47
c. Situations Where Opinions of Lay Witnesses Are Not Admissible   47
6.4.2 Opinion Testimony by Expert Witnesses   47
a. Requirements for Admissibility  47
b. Use of Learned Treatises During Examination   49
c. Opinion on Ultimate Issues   50
d. Court-Appointed Experts  50

6.5 EXCLUSION AND SEQUESTRATION OF WITNESSES  51

6.6 WITNESSES CALLED OR EXAMINED BY THE COURT  51

7 IMPEACHMENT  52
7.1 GENERAL CONCEPTS  52
7.1.1 Accrediting or Bolstering Generally Prohibited   52
a. Exceptions to Rule Against Bolstering  52
7.1.2 Any Party May Impeach   52

7.2 IMPEACHMENT METHODS  53

7.2.1 Prior Inconsistent Statements   54
a. When Admissible as Substantive Evidence  54
b. Foundation for Extrinsic Evidence   55
7.2.2 Bias or Interest   56
a. Foundation for Extrinsic Evidence   56
7.2.3 Sensory Deficiencies   57
7.2.4 Contradictory Facts   57

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7.2.5 Opinion or Reputation Evidence of Untruthfulness   58

7.2.6 Conviction of Crime   59
a. Type of Crime   59
b. Remote Convictions Generally Not Admissible   60
c. No Foundation Required for Extrinsic Evidence   60
d. Effect of Pardon   60
e. Juvenile Convictions Generally Not Admissible  61
f. Constitutionally Defective Conviction Cannot Be Used   61
7.2.7 Bad Acts Involving Untruthfulness  61
a. Extrinsic Evidence Not Permitted   61

7.3 IMPEACHMENT ON COLLATERAL MATTER  63

7.4 IMPEACHMENT OF HEARSAY DECLARANT  63

7.5 REHABILITATION  63
7.5.1 Explanation on Redirect   64
7.5.2 Good Character for Truthfulness   64
7.5.3 Prior Consistent Statement   64

8 HEARSAY  66
8.1 BASIC RULE AND DEFINITION  66
8.1.1 Statement of the Rule  66
a. Hearsay Within Hearsay  66
8.1.2 Elements of Definition  67
a. “Statement”   67
b. Not Made at Current Trial or Hearing  67
c. “Offered to Prove the Truth of the Matter Asserted”   67

8.2 STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL

RULES  69
8.2.1 Prior Statements of Testifying Witnesses   71

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8.2.2 Statements by or Attributable to Opposing Party   72

a. Judicial and Extrajudicial Statements   73
b. Adoptive Statements   73
c. Vicarious Statements   73

8.3 HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE  76

8.3.1 Grounds for Unavailability  76
8.3.2 Former Testimony   76
8.3.3 Statements Against Interest   78
a. Limitation on Statements Against Penal Interest  79
b. “Statement” Means Single Remark   79
8.3.4 Dying Declarations—Statements Under Belief of Impending Death   79
8.3.5 Statements of Personal or Family History   81
8.3.6 Statements Offered Against Party Procuring Declarant’s Unavailability   81

8.4 HEARSAY EXCEPTIONS—DECLARANT’S AVAILABILITY IMMATERIAL  82

8.4.1 Excited Utterances   82
8.4.2 Present Sense Impressions   83
8.4.3 Present State of Mind   84
a. Includes Statements of Intent  85
b. Includes Statement of Physical Condition  85
8.4.4 Statements Made for Purposes of Medical Diagnosis or Treatment   85
8.4.5 Records of a Regularly Conducted Activity—Business Records   87
a. Elements  87
b. Required Foundation for Business Records  88
c. Business Records to Prove Nonoccurrence of Matter  89
d. Court May Exclude for Lack of Trustworthiness—Burden on Opponent  89
8.4.6 Official Records and Other Official Writings   89
a. Public Records and Reports   89
b. Records of Vital Statistics   90
c. Statement of Absence of Public Record   90
d. Judgments   91

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8.4.7 Recorded Recollection  91

8.4.8 Learned Treatises   92
8.4.9 Ancient Documents  92
8.4.10 Documents Affecting Property Interests   92
8.4.11 Reputation   92
8.4.12 Family Records   94
8.4.13 Market Reports   94

8.5 RESIDUAL “CATCH-ALL” EXCEPTION OF FEDERAL RULES  94

8.6 CONSTITUTIONAL ISSUES  94

8.6.1 Hearsay and the Confrontation Clause  94
a. “Testimonial” Statement   95
8.6.2 Due Process Rights   96

9 TESTIMONIAL PRIVILEGES  97
9.1 INTRODUCTION  97
9.1.1 Exam Approach  97
9.1.2 Federal Common Law Privileges   97
9.1.3 General Considerations   98
a. Persons Who May Assert Privilege   98
b. Confidentiality   98
c. Comment on Privilege Forbidden   98
d. Waiver   98
e. Eavesdroppers   98

9.2 ATTORNEY-CLIENT PRIVILEGE  98

9.2.1 Attorney-Client Relationship   99
a. Corporate Clients   99
9.2.2 Confidential Communication   99
a. Communications Through Agents   100
b. Joint Client Rule—No Privilege Where Attorney Acts for Both Parties   100
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9.2.3 Professional Legal Consultation  100

9.2.4 Client Holds Privilege   100
9.2.5 Privilege Applies Indefinitely   101
9.2.6 Exceptions  101
9.2.7 Attorney’s Work Product   101
9.2.8 Limitations on Waiver of Attorney-Client Privilege and Work Product Rule  102

9.3 PHYSICIAN-PATIENT PRIVILEGE (STATE PRIVILEGE ONLY)  102

9.3.1 Scope and Applicability  102
9.3.2 Main Exceptions   103
9.3.3 Criminal Proceedings   104

9.4 PSYCHOTHERAPIST/SOCIAL WORKER-PATIENT PRIVILEGE  104

9.5 PRIVILEGES RELATING TO MARRIAGE  104

9.5.1 Spousal Testimonial Privilege (Spousal Immunity)—Criminal Cases Only   104
a. Witness-Spouse Holds Privilege   105
9.5.2 Privilege for Confidential Marital Communications   105
a. Confidentiality  105
9.5.3 When Neither Marital Privilege Applies   106

9.6 OTHER PRIVILEGES  107

9.6.1 Clergy-Penitent Privilege  107
9.6.2 Privilege Against Self-Incrimination  107
9.6.3 Governmental Privileges  108
9.6.4 Accountant-Client Privilege (State Only)  108
9.6.5 Professional Journalist Privilege (State Only)  108

10 PROCEDURAL CONSIDERATIONS  109

10.1 BURDENS OF PROOF  109
10.1.1 Burden of Production   109
10.1.2 Burden of Persuasion (Proof)   109

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10.2 PRELIMINARY QUESTIONS  109

10.2.1 Preliminary Facts Decided by Jury   110
a. Screened by Judge  110
10.2.2 Preliminary Facts Decided by Judge   110
a. Judge May Consider All Non-Privileged Evidence   110
b. Presence of Jury  111
10.2.3 Testimony by Accused Does Not Waive Privilege Against
Self-Incrimination   111

10.3 JUDICIAL NOTICE  111

10.3.1 Judicial Notice of Fact  111
a. Facts Appropriate for Judicial Notice   111
b. Required on Party’s Request  112
c. Conclusiveness  112
d. “Adjudicative” and “Legislative” Facts   112
10.3.2 Judicial Notice of Law—Mandatory or Permissive  112

10.4 PRESUMPTIONS  112

10.4.1 Common Presumptions   113
a. Mail Delivery   113
b. Death from 7-Year Absence  113
c. Against Suicide   113
d. Legitimacy   113
e. Sanity   113
f. Ownership of Car—Agent Driver   113
g. Chastity   113
h. Regularity   113
i. Continuance   113
j. Solvency   114
k. Bailee’s Negligence   114
l. Marriage   114
10.4.2 Effect of Presumption—Shifts Burden of Production   114

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10.4.3 Rebutting Presumptions in Civil Cases   114

10.4.4 No Mandatory Presumptions in Criminal Cases  114
10.4.5 Distinguish True Presumptions from Inferences and Substantive Law   115
a. Permissible Inferences   115
b. Conclusive Presumptions   115
10.4.6 Conflicting Presumptions   115
10.4.7 Choice of Law Regarding Presumptions in Civil Actions   115

10.5 RULE OF COMPLETENESS  115

10.6 LIMITED ADMISSIBILITY  116

10.7 RULINGS ON EVIDENCE  116

10.7.1 Preserving Claim of Error for Appeal  116
a. Timing of Objections  116
b. Specificity of Objections   117
c. “Opening the Door”  117
d. Motion to Strike—Unresponsive Answers   117
e. Exceptions   117
f. Offers of Proof   117
g. Taking Notice of Plain Error  118
10.7.2 Judicial Power to Comment upon Evidence   118
10.7.3 Shielding Jury from Inadmissible Evidence  118

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EVIDENCE NOTES

1 OVERVIEW OF EVIDENCE
1.1 WHAT IS EVIDENCE LAW?
The law of evidence is a system of rules and standards
that regulate the admission of proof (evidence) in a court
proceeding. In other words, the important facts of the case
are determined by proof that is filtered through the appli-
cable rules of evidence and determined to be either admis-
sible or inadmissible. This proof includes testimony, writings,
physical objects, and anything else presented to the senses
of the jury. Such proof can be direct or circumstantial in
nature.

1.2 WHAT LAW APPLIES ON THE BAR EXAM?

The Federal Rules of Evidence govern on the Multistate Bar
Examination (“MBE”). Many of the wrong answer choices
you’ll run into on MBE questions reflect a traditional common
law rule that was eventually replaced by the Federal Rules.

Minor caveat: There are a few situations where federal

courts will apply state law (for example, with respect to privi-
lege in a diversity case), and we’ll point out those situations
as we encounter them.

1.2.1 Applicability of Federal Rules

We know that the Federal Rules control on the bar exam,
but you might encounter an exam question about whether
they apply in a particular federal proceeding. The Federal
Rules are generally applicable in all civil and criminal federal
proceedings. However, there are certain types of proceed-
ings (listed below) where the judge or jury is permitted to
consider more information than would be admissible under
the Federal Rules.

a. When Federal Rules Do Not Apply

Except for rules relating to privilege, the Federal Rules do
not apply in: (1) the court’s determination of a preliminary

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question of fact relating to admissibility (we’ll cover this in
NOTES the final module on Procedural Considerations); (2) grand
jury proceedings; and (3) other miscellaneous proceedings,
including those involving sentencing, extradition, bail, and
probation.

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2 RELEVANCE NOTES

2.1 BASIC PRINCIPLES

2.1.1 Definition of Relevance
Evidence is relevant if it has any tendency to make the
existence of any fact of consequence to the determination
of the action more probable or less probable than it would
be without the evidence. In other words, for evidence to be
relevant, it must be:

• Material—that is, the proposition must be “of conse-

quence” in the case (though it does not need to be the
ultimate issue); and
• Probative—meaning, the evidence has “any” tendency
to make the proposition more or less likely
This is a threshold question, and a low bar to overcome.

2.1.2 General Rule of Admissibility

Irrelevant evidence is always inadmissible. All relevant
evidence is admissible, unless:

• It is kept out by some specific exclusionary rule of evi-

dence that you will be learning about in subsequent mod-
ules (hearsay, privilege, public policy exclusions, etc.); or
• The court uses its Rule 403 discretion to keep it out (see
below)

2.1.3 Rule 403 (Court’s Discretion to Exclude

Relevant Evidence)
A trial judge has broad discretion to exclude relevant
evidence if its probative value is substantially outweighed
by the danger of one or more of the following considerations:

• Danger of unfair prejudice (there is a danger that the jury

will decide the case on an emotional basis)
• Confusion of the issues (the evidence creates a side
issue)

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• Misleading the jury (there is a danger that the jury will
NOTES give undue weight to the evidence)
• Undue delay
• Waste of time
• Needless presentation of cumulative (repetitive) evidence

Under the Federal Rules, unfair surprise is not a

CMR valid ground upon which to exclude relevant
Exam Tip
evidence.

Note: You’ll encounter a few isolated situations where the

judge must use a different balancing test to determine
whether evidence is admissible, but Rule 403 is the standard
balancing test for most evidence.

2.2 SIMILAR OCCURRENCES

As a general rule, if evidence involves some time, event,
or person other than that involved in the present case, it is
inadmissible. The rationale is that the evidence often does
not survive the Rule 403 balancing test; in other words, the
relevance is weak to begin with and the probative value is
substantially outweighed by pragmatic considerations (for
example, the dangers of confusing the issues, misleading the
jury, or wasting time).

Despite the general rule above, some recurring situations

have produced concrete rules that may allow prior similar
occurrences to be admitted. The following are examples of
relevant similar occurrences:

2.2.1 Plaintiff’s Accident History—Prior False Claims

or Same Bodily Injury
HYPO 2A
Phil drove into a lamp post and sues the municipality in
negligence, alleging that the placement of the post created
a hazardous condition. Should the municipality be allowed
to introduce evidence that Phil has frequently driven into
other stationary objects (tree, bridge, brick wall)?

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Evidence that a person has previously filed similar tort
claims or has been involved in prior accidents is generally
NOTES
inadmissible to show the invalidity of the present claim; all it
demonstrates is that the person is litigious or accident-prone.
However, such evidence may be admissible if it tends to
show something other than carelessness:
• Evidence that a plaintiff has made previous similar false
claims is usually relevant to prove that the present claim
is likely to be false.
• Evidence of prior accidents may be admissible where the
cause of the plaintiff’s damages is at issue. If the plaintiff
previously injured the same part of their body, the evi-
dence may be admitted to show that the plaintiff’s condi-
tion is attributable (in whole or in part) to the prior injury
rather than the current accident.

HYPO 2B
Assume in Hypo 2A that Phil is claiming damages for a
neck injury. Six months before the lamp post accident at
issue in this lawsuit, Phil injured his neck when he drove
his car into a brick wall. Is that prior accident admissible,
and for what purpose?

When faced with an Evidence question, always ask

CMR yourself, “For what purpose is the evidence being
Exam Tip
offered?”

2.2.2 Similar Accidents or Injuries Caused by Same

Event or Condition
Generally, other accidents involving the defendant are
inadmissible because they merely show the defendant’s
general character for carelessness. However, evidence
of prior accidents or injuries caused by the same event
or condition and occurring under substantially similar
circumstances is admissible to prove: (1) the existence of a
dangerous condition, (2) that the dangerous condition was
the cause of the present injury, and (3) that the defendant
had notice of the dangerous condition (if the other accident
occurred before the plaintiff’s accident).

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NOTES HYPO 2C
Assume in Hypo 2A that several other vehicles had collided
with the same lamp post that Phil ran into. Could Phil
introduce those other accidents against the municipality?

Note: As discussed in a later module, “substantial similarity”

is also the rule governing the admissibility of experiments
and tests (for example, an accident recreation needs to be
performed under substantially similar circumstances as the
accident).
a. Absence of Similar Accidents
Many courts are reluctant to admit evidence of the absence
of similar accidents to show absence of negligence or lack
of a defect. However, evidence of the absence of complaints
is admissible to show the defendant’s lack of knowledge of
the danger.

2.2.3 Previous Similar Acts Admissible to Prove

Intent
Similar conduct previously committed by a party may be
admissible to prove the party’s present motive or intent in the
current case.

HYPO 2D
Marta sues Brewski Co. for sex discrimination, alleging that
she was qualified for the job but was not hired because
she is a woman. She seeks to show that Brewski hired
no women, despite their qualifications, during the past 6
years. Admissible?

2.2.4 Sales of Similar Property

Evidence of sales of similar personal or real property around
the same time period is admissible to prove the property’s
value. However, prices quoted in mere offers to purchase
generally aren’t admissible.

2.2.5 Rebutting Claim of Impossibility

The requirement that prior occurrences be similar to the
litigated act may be relaxed when used to rebut a claim of
impossibility (for example, the defendant’s claim that the car will
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not go above 50 miles per hour can be rebutted by showing
occasions when the car went more than 50 miles per hour).
NOTES

2.2.6 Causation
Complicated issues of causation may be established by
evidence concerning other times, events, or persons (for
example, damage to nearby homes caused by D’s blasting is
relevant to prove D’s blasting damaged P’s home).

2.2.7 Habit and Business Routine Evidence

Evidence of a person’s habit (or evidence of the routine
practice of an organization) is admissible as circumstantial
evidence that the person (or organization) acted in accor-
dance with the habit on the occasion at issue in the case.
Habit describes a person’s regular response to a specific
set of circumstances. Thus, there are 2 defining characteris-
tics of habit: (1) frequency of conduct and (2) particularity of
circumstances.
a. Distinguish Character Evidence
Character describes someone’s general disposition or
propensity with respect to general traits. As discussed in the
Character Evidence module, this type of evidence is gener-
ally not admissible to prove how a person acted during the
events of the case.

EXAMPLE
The fact that Carlos is a “careless” driver is inadmissible to sug-
gest that he ran a red light and caused the accident involving
the plaintiff.

HYPO 2E
Bob has been sued for the tort of failing to brush his teeth
on Tuesday, November 5, 2020. Bob’s wife testifies that
she can’t remember whether Bob brushed his teeth on
November 5, 2020, but she also testifies that (1) Bob’s
morning routine involves brushing his teeth at their
bathroom sink immediately after showering and that he
has stuck to this routine since they were married 5 years
ago, and (2) Bob has a reputation for being very clean and
hygienic. Is each part of her testimony admissible?

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NOTES HYPO 2F
In an auto accident case, the issue is whether Joe Isuzu
stopped his car at the stop sign at the intersection of
Hickory and Main Streets.
(1) Plaintiff calls Wanda to testify that during the 6 months
preceding the accident, she had seen Joe run red lights,
change lanes without using signals, and run stop signs
throughout town. Admissible as habit evidence to prove
that Joe ran the stop sign at Hickory and Main?
(2) Wanda will testify that she has seen Joe run the stop
sign at Hickory and Main on at least 8 occasions within a
2-week period. Admissible as habit evidence?

Watch for key words such as “always,” “invariably,”

CMR “instinctively,” and “automatically” in a question’s
Exam Tip
fact pattern. These words may indicate habit.

CHARACTER EVIDENCE VS. HABIT EVIDENCE

Character Evidence Habit Evidence

“Sally is always impatient and in a “Sally always takes the stairs two at a
hurry.” time.”

“Bart is a drunk.” “Bart stops at Charlie’s tavern every night

after work and has exactly four beers.”

“Jeff is a careless driver.” “Jeff never slows down for the YIELD sign
at the end of the street.”

“Lara is very conscientious about the “Lara checks the brakes on her car every
maintenance of her car.” Sunday before church.”

CMR Chart

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2.2.8 Industry Custom as Evidence of Standard of NOTES

Care
Evidence as to how others in the same trade or industry have
acted in the recent past may be offered as evidence of the
appropriate standard of care (to show how the party in the
current case should have acted). However, industry custom
isn’t conclusive on this point; for example, an entire industry
may be acting negligently.

EXAMPLE
Plaintiff is injured when a blade spins off a lawn mower. In an
action against the manufacturer, she may show that during the
relevant time period, 80% of all other lawn mower manufacturers
had installed devices to prevent blade spin-off. While not conclu-
sive (maybe the other companies were being overly cautious),
it is admissible as some evidence of the standard of care in the
industry.

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NOTES 3 PUBLIC POLICY EXCLUSIONS

Certain evidence is excluded by the Federal Rules because
public policy favors the behavior involved. For example, we
as a society encourage the settlement of disputes and the
immediate repair of dangerous conditions. If such evidence
were routinely admissible in court, it could dissuade people
from doing these things in the first place. Evidence excluded
for public policy reasons includes the following:

3.1 LIABILITY INSURANCE

Evidence of a party’s insurance against liability (or lack
thereof) is not admissible to show whether the party acted
negligently or otherwise wrongfully (meaning, it is inadmis-
sible to prove the party’s fault or absence of fault). However,
it may be admissible for other relevant purposes, such as:

• To prove ownership or control, if disputed;

• To impeach a witness (usually to show their bias); or
• As part of an admission of liability, where the reference
to insurance coverage cannot be severed without less-
ening its probative value as an admission of liability (for
example, “Don’t worry, my insurance will pay it off”)

HYPO 3A
(1) Gary falls down a well on Ted’s property, contending
that the well was impossible to see because of overgrown
foliage. Ted denies that he was negligent and also
defends, in the alternative, on the ground that he did
not own the land in question. Should Gary be allowed
to introduce evidence that Ted carried a homeowner’s
liability insurance policy on the land?
(2) Same case. Marla, a witness called by Ted, testifies that
she had been on Ted’s property just prior to the accident
and there was no foliage covering the well. May Gary
show, during cross-examination of Marla, that she is a
claims adjuster employed by the company that issued the
homeowner’s policy to Ted?
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3.2 SUBSEQUENT REMEDIAL MEASURES NOTES

Evidence of repairs or other precautionary measures made
following an injury is not admissible to prove negligence,
culpable conduct, a defect in a product or its design, or a
need for a warning or instruction. However, it may be admis-
sible for some other relevant purpose, such as:
• To prove ownership or control, if disputed;
• To rebut a claim that a precaution was not feasible; or
• To prove that the opposing party has destroyed evidence

HYPO 3B
Penelope bought a cup of coffee at Dante’s Coffee Inferno
and scalded her tongue because the coffee was too hot.
She sues Dante’s in negligence. Dante’s denies that it was
negligent.
(1) At trial, Penelope seeks to introduce evidence that
after the accident, Dante’s installed new thermostats on
its coffee-brewing equipment. Penelope contends that
this conduct is an admission by Dante’s that better safety
controls were feasible. Admissible?
(2) Same case, except now assume that Penelope
contends that Dante’s negligence consisted of the failure
to place warnings on its coffee cups indicating that its
coffee was too hot for human consumption. Dante’s
defends, in part, on the ground that it was impossible to
affix labels to its coffee cups. Penelope seeks to introduce
evidence that after the accident, Dante’s began to use
cups that were pre-printed with warnings. Admissible?

HYPO 3C
Miguel sues Universal Motors Inc. for injuries suffered
in an auto accident. Miguel claims that a defect in
the brakes of the Universal car caused the accident.
Defense: “No defect.” Miguel seeks to introduce
evidence that after the accident, Universal (1) changed
the design of the brakes on its cars, and (2) sent a defect
notice to purchasers urging them to bring their vehicles
11
EVIDENCE
to service dealers for brake replacement. Admissible to
NOTES prove the existence of a defect in the brakes at the time
of Miguel’s accident?

3.3 CIVIL SETTLEMENTS AND SETTLEMENT

NEGOTIATIONS
Evidence of a compromise (settlement) or an offer to
compromise a civil claim is not admissible in any case to:
(1) prove or disprove the validity or amount of a disputed
claim, or (2) impeach a witness by prior inconsistent state-
ment or contradiction. Conduct or statements made in
the course of negotiating a compromise—including direct
admissions of liability—are also inadmissible for these
purposes.

Note: Evidence of settlement is admissible to impeach a

witness on the ground of bias.

HYPO 3D
Hans and Franz were simultaneously struck by a truck
being driven by Arnold. Hans and Franz both filed suit
against Arnold, each seeking $100,000. Arnold denied all
allegations.
(1) Before trial, Hans settled with Arnold for $50,000. When
Franz’s case went to trial, Franz sought to introduce the
Hans-Arnold settlement as evidence that Arnold, in effect,
acknowledged his fault. Admissible?
(2) Before Franz’s case went to trial, Franz and Arnold
met to discuss possible settlement. During the discussion,
Franz said, “I’ll accept $50,000 in settlement. The fact that
I was jay-walking may confuse the jury.” Arnold declined.
At trial, should Arnold be allowed to introduce (a) Franz’s
offer to settle and (b) Franz’s admission that he was jay-
walking?
(3) At the trial of Franz’s case, Arnold called Hans as a
witness and Hans testified to the effect that Arnold did not
drive negligently. On cross-examination of Hans, should
Franz be allowed to prove the Hans-Arnold settlement?

12
 EVIDENCE

3.3.1 Disputed Claim Required NOTES

The public policy exclusion for settlements and negotia-
tions only kicks in if there was a claim or some indication
that a party was going to make a claim (although the party
need not have actually filed suit). Furthermore, the claim
must have been in dispute as to either (1) liability or (2)
amount.

HYPO 3E
A’s and B’s cars collided. B immediately ran up to A and
said, “Look, I’ll settle with you for $100,000 if you don’t
sue.” Should A be allowed to introduce B’s statement
against him at a subsequent trial?

HYPO 3F
After A’s and B’s cars collided, A sent a letter to B saying,
“The accident was all your fault. I demand that you pay
my damages in the amount of $100,000.” B called A on
the phone and said, “You’re right about the accident. It
was all my fault and I owe you the full $100,000 you’re
asking for. But you know how fickle juries can be. If you
don’t accept $50,000 now, you’ll have to sue me to get
anything.”
(1) Should A be allowed to introduce B’s statements
against B at a subsequent trial?
(2) What if B had said, “It was all my fault, but you didn’t
suffer $100,000 in damages”?

3.3.2 Limited Exception to Rule—Civil Dispute with

Government Authority
Under the Federal Rules, conduct or statements made during
compromise negotiations regarding a civil dispute with a
governmental regulatory, investigative, or enforcement
authority are not excluded when offered in a criminal case.
For example, a defendant’s admissions of fact during settle-
ment negotiations with a securities enforcement agency
would be admissible against the defendant in a related
criminal trial.
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EVIDENCE

NOTES 3.4 PLEA DISCUSSIONS

The following are generally inadmissible in any criminal or
civil case against the defendant who made the plea or partic-
ipated in the discussions:
• Offers to plead guilty;
• Withdrawn guilty pleas;
• Actual pleas of nolo contendere (“no contest”); or
• Statements of fact made during any of the above plea
discussions
Note: An actual guilty plea (not withdrawn) is generally
admissible in related litigation as a statement of an opposing
party (see the Hearsay module).
3.5 PAYMENTS OF AND OFFERS TO PAY
MEDICAL EXPENSES
Evidence that a party has paid or offered to pay an injured
person’s medical, hospital, or similar expenses is inadmis-
sible to prove liability for the injury. However, unlike the
situation with settlement negotiations, admissions of fact
accompanying such payments and offers are admissible.

HYPO 3G
Donna’s car hit pedestrian Pablo. Donna immediately ran
to Pablo and said, (1) “Don’t worry about a thing. I’ll pay for
your hospital bills. (2) I’m sorry I ran the red light.”
Is statement (1) admissible against Donna?
Is statement (2) admissible against Donna?

Generally, the most important thing to remember

CMR about offers to pay medical expenses is that
Exam Tip
accompanying admissions of fact are admissible.
Beware, however, of an offer to pay medical expenses that
is also an offer to settle (for example, “I’ll pay your medical
expenses if you drop the case”). In that situation, the more
restrictive rule for settlement negotiations applies; meaning,
any accompanying statements or conduct would be exclud-
ed along with the offer.

14
 EVIDENCE

EVIDENCE THAT MAY BE EXCLUDED

FOR POLICY REASONS

Evidence Inadmissible Admissible

Liability Insurance To prove negligence or To prove ownership or

ability to pay control, as impeachment,
or as part of an admission
of liability

Subsequent Remedial To prove negligence, To prove ownership or

Measures culpable conduct, a defect control, to rebut a claim
in a product or its design, that precautions were
or a need for a warning impossible, or to prove
or instruction destruction of evidence

Settlement Offers or To prove or disprove the For all other purposes

Negotiations validity or amount of a
disputed claim, or to
impeach by prior
inconsistent statement
or contradiction

Offers to Pay and To prove culpable conduct For all other purposes
Payment of Medical (Admissions of fact
Expenses accompanying an offer to
pay medical expenses are
admissible)

Withdrawn Guilty Pleas For nearly all purposes Not admissible

and Offers to Plead Guilty

CMR Chart

15
EVIDENCE

NOTES 4 CHARACTER EVIDENCE

4.1 TYPES OF CHARACTER EVIDENCE
Character evidence refers to a person’s general propensity
or disposition (such as for honesty, fairness, peacefulness,
violence). Character evidence might be offered as substan-
tive evidence (meaning, to prove a fact at issue in the case)
for the following purposes:

• To prove a person’s character in the rare situation where

their character is directly in issue in the case (meaning,
an essential element of a claim or defense); or

• To serve as circumstantial evidence of how a person

probably acted during the events of the case. This is also
known as “conduct in conformity with character” or “pro-
pensity” evidence. This purpose for offering character
evidence is the focus of this module because it is permit-
ted only in a few situations.

Additionally, evidence of a witness’s bad character for truth-

fulness might be offered for impeachment purposes (that
is, to attack the witness’s credibility rather than to prove
some fact in the case). For coverage, see the Impeachment
module.

4.1.1 Methods of Proving Character

Depending on the purpose of the offer and the nature of
the case, some or all of the following methods of proving
character may be allowed:

• Evidence of the person’s specific acts;

• Opinion testimony of a witness who knows the person;

and

• Testimony as to the person’s general reputation in the

community

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 EVIDENCE

4.2 DEFENDANT’S CHARACTER IN CRIMINAL NOTES

CASE
The prosecution cannot initiate evidence of the defen-
dant’s bad character to show conduct in conformity. In
other words, they can’t introduce such evidence during
their case-in-chief to show that it is within the defendant’s
character to commit the charged crime. However, because
the defendant’s life or liberty is at stake, the defendant
is permitted to introduce evidence of their own good
character to show their innocence. If the defendant intro-
duces evidence of their good character, then the prose-
cution can rebut with evidence of the defendant’s bad
character.

4.2.1 How Defendant Proves Character

Under the Federal Rules, a character witness for the defen-
dant may testify as to the defendant’s good reputation
for a pertinent trait and may give their personal opinion
concerning that trait of the defendant.

HYPO 4A
(1) Rambo is charged with murder. During its direct case,
should the prosecution be allowed to introduce evidence
that Rambo has been convicted 3 times for assault, has
a bad reputation for violence, and recently stampeded a
herd of cattle?
(2) Should the prosecution’s proposed evidence be
admitted on the ground that defendant’s violent character
is a material element of the crime with which Rambo is
charged?

HYPO 4B
(1) During the defense, Rambo calls Trautman to the stand
to testify: (a) “I’m familiar with Rambo’s reputation for
peacefulness, and it is excellent. (b) I personally know
Rambo, and in my opinion he is a peaceful person.”
Admissible? For what purpose?

17
EVIDENCE
(2) Could Trautman properly testify, “I’ve seen Rambo
NOTES turn the other cheek when assaulted by bullies; he’s the
President of the local Pacifist Club”?
(3) Could Trautman properly testify, “Rambo’s reputation
for bravery and honesty is excellent”?

Remember that a defendant does not put their

CMR character in issue merely by testifying. Taking the
Exam Tip
stand places the defendant’s credibility (as op-
posed to character) in issue; meaning, the prosecution is
limited to offering impeachment evidence rather than sub-
stantive character evidence.

4.2.2 Prosecution’s Options—Cross-Examination of

Defendant’s Character Witness and Rebuttal
Once the defendant opens the door by introducing character
evidence, the prosecution can take either or both of the
following actions:
• The prosecution can cross-examine the defendant’s
character witness regarding the basis for their testimony
by asking “Have you heard?” or “Did you know?” ques-
tions about specific acts of the defendant that show the
defendant’s bad character for the trait in question. The
permitted purpose of the cross-examination is to show
the character witness’s lack of knowledge, not to prove
the defendant’s bad character.

Any misconduct, including prior arrests, may be

CMR inquired about while cross-examining a defen-
Exam Tip
dant’s character witness. Remember, however, that
the prosecutor is limited to inquiry of the witness; they may
not introduce any extrinsic evidence of the misconduct. Be
careful to distinguish asking a character witness whether
they are aware of the defendant’s prior arrests, which is
proper, and impeaching a witness with the witness’s own
arrests, which is improper (see the Impeachment module).

• The prosecution can call its own character witnesses to

provide reputation or opinion testimony about the defen-
dant’s bad character for the trait in question.
18
 EVIDENCE

HYPO 4C NOTES
During the defense, Rambo called Trautman to testify to
Rambo’s peaceful character.
(1) Could the prosecutor ask Trautman, on cross-
examination: (a) “Have you heard that Rambo was arrested
last year for assaulting Rocky?” (b) “Did you know that
Rambo shot Judge Dredd 3 years ago?”
(2) If Trautman denies having heard or knowing of the
arrests or bad acts mentioned by the prosecutor, may the
prosecutor prove that they actually occurred?
(3) Could the prosecutor properly ask Trautman, “Have
you heard (or did you know) that Rambo cheated on his
income taxes last year?”

HYPO 4D
Assume Rambo introduced Trautman’s favorable character
testimony. After the defense rests, the prosecution calls
Murdock to testify that he has known Rambo for 20 years,
is familiar with Rambo’s reputation for peacefulness in
the community, and that such reputation is bad. Rambo’s
attorney objects on the ground that this is impermissible
character evidence. Result?

HYPO 4E
Assume that the only witness who testified during the
defense was Rambo himself, and he testified only to the fact
that he did not commit the murder. After the defense rests,
the prosecution calls Murdock to testify that Rambo has a
reputation for violence. Rambo’s attorney objects on the
ground that this is impermissible character evidence. Result?

4.3 VICTIM’S CHARACTER IN CRIMINAL CASE

4.3.1 When Defendant Can Initiate
Except in sexual assault cases (see 4.3.3, below), the defen-
dant may introduce reputation or opinion evidence of a bad
character trait of the alleged crime victim when it is relevant to
show the defendant’s innocence. Although a victim’s character
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EVIDENCE
usually has no bearing on the defendant’s innocence, it
NOTES becomes relevant when the defendant claims self-defense
and argues that the victim was the first aggressor.
a. Prosecution Rebuttal
Once the defendant has introduced evidence of a victim’s bad
character for a pertinent trait (usually violence), the prosecu-
tion may rebut with reputation or opinion evidence of:
• The victim’s good character for the same trait, or
• The defendant’s bad character for the same trait

HYPO 4F
Defendant, Coach Bobby, has been charged with assault
for throwing a chair at Tonya. Coach Bobby claims that
Tonya started the fight and lunged at him with a knife.
To prove that Tonya was the first aggressor, Bobby calls
Nancy to testify:
(1) That she knows Tonya and that, in her opinion, Tonya is
a very violent woman. Result?
(2) That she (Nancy) had been the victim of a knife attack
by Tonya a few years ago. Result?
(3) What if Bobby offers evidence that, at the time of the
altercation with Tonya, he was aware of her prior knife
attack on Nancy?

The rules above apply where evidence of the

CMR victim’s character is being offered for propensity
Exam Tip
purposes (to prove how the victim likely acted
during the altercation at issue). But evidence of a victim’s
character might also be offered for a non-propensity pur-
pose—to prove the defendant’s state of mind at the time of
the altercation. If the defendant knew at the time of the
altercation that the victim had a violent reputation or had
committed violent acts in the past, evidence of the victim’s
reputation or acts may be admitted to prove the defendant
acted reasonably in responding to the victim’s aggression.
The above prohibition on specific acts does not apply when
the evidence is offered for a non-propensity purpose.

20
 EVIDENCE

4.3.2 When Prosecution Can Initiate—Rebutting NOTES

Self-Defense Claim in Homicide Case
There is a special rule that allows the prosecution to offer
evidence of a victim’s good character for peacefulness. In a
homicide case in which the defendant pleads self-defense,
evidence of any kind (not just character evidence) that the
victim was the first aggressor (for example, eyewitness testi-
mony that the victim struck first) opens the door to evidence
that the victim had a good character for peacefulness.
The prosecution can introduce this evidence regardless of
whether the defendant has introduced character evidence of
the victim’s generally violent propensity.

HYPO 4G
(1) Diane is charged with assaulting Vicky during a tavern
brawl. Diane alleges self-defense and introduces a
bartender’s testimony that Vicky attacked Diane first. The
prosecution wants to introduce testimony that Vicky has a
reputation for peacefulness. Admissible?
(2) Assume instead that Vicky died as a result of her
injuries and this is a manslaughter prosecution. Following
the bartender’s testimony that Vicky attacked Diane first,
can the prosecution introduce testimony that Vicki has a
reputation for peacefulness?

4.3.3 Rape Victim’s Past Behavior Generally

Inadmissible
In any civil or criminal proceeding involving alleged sexual
misconduct, evidence offered to prove the sexual behavior or
sexual disposition of the victim is generally inadmissible.

a. Exceptions in Criminal Cases

In a criminal case, specific instances of a victim’s sexual
behavior are admissible to prove that someone other
than the defendant is the source of semen, injury, or
other physical evidence. Also, specific instances of sexual
behavior between the victim and the defendant are admis-
sible by the prosecution for any reason and by the defense
to prove consent.

21
EVIDENCE

b. Exceptions in Civil Cases

NOTES
In a civil case, evidence of the alleged victim’s sexual
behavior is admissible if it is not excluded by any other rule
and its probative value substantially outweighs the danger
of harm to the victim and of unfair prejudice to any party
(notice that this is a special balancing test that is the reverse
of Rule 403 and favors excluding the evidence). Evidence of
an alleged victim’s reputation is admissible only if it has been
placed in controversy by the victim.

4.4 CIVIL CASES—GENERALLY NOT ADMISSIBLE

In civil cases, character evidence is generally inadmissible to
prove conduct in conformity; meaning, it cannot be offered to
prove how a person probably acted during the events of the
current case. This is true regardless of which party seeks to
offer the evidence.

HYPO 4H
A sues B for automobile negligence.
(1) During the plaintiff’s case-in-chief, A seeks to offer
evidence of B’s reputation for careless driving. Admissible?
(2) During the defense, B calls Witness to testify that, in her
opinion, B is a prudent and careful driver. Admissible?

HYPO 4I
Victim’s estate sues Husband for wrongful death damages,
alleging that Husband intentionally killed Victim. During
the defense, may Husband properly introduce evidence of
his peaceful character?

HYPO 4J
In the wrongful death action against Husband, he defends
on the ground of self-defense. May Husband properly
introduce evidence of Victim’s violent character to prove
that she was the first aggressor?

4.4.1 Admissible When Character Directly in Issue

When proof of a person’s character, as a matter of

22
 EVIDENCE
substantive law, is an essential element of a claim or
defense, it is said that character is “directly in issue.” This is
NOTES
rare, and for bar exam purposes is generally limited to:

• Defamation cases where truth is a defense (plaintiff’s

character is at issue);
• Negligent hiring or entrustment cases (hired/entrusted
person’s character is at issue); and
• Child custody cases (parents’ character is at issue)
When character is directly in issue, all forms of character
evidence (reputation, opinion, and specific acts) are admissible.

EXAMPLES
1) P was struck in 2021 by a truck being driven by Charlie, who
was acting within the scope of his employment for Acme Truck-
ing. P sues Acme, alleging that Acme was negligent in hiring
Charlie in 2020 and thereafter allowing him to drive on Acme’s
behalf. (Tort theory: Acme knew or should have known that Char-
lie was an accident risk.) P may introduce the testimony of char-
acter witnesses that Charlie had a reputation for being a careless
driver, and that they have a low opinion of Charlie’s carefulness
when driving. P may also prove that Charlie had been involved in
3 prior accidents.
2) P sues Newspaper for libel based on a story in which P was
accused of being dishonest. To support its defense of “truth,”
Newspaper may introduce reputation, opinion, and specific-act
evidence about P’s dishonesty, and P may use the same type of
evidence to show P’s honesty.

4.5 OTHER MISCONDUCT FOR

NON-CHARACTER PURPOSE
4.5.1 General Rule—Other Misconduct Inadmissible
Evidence of a person’s other crimes, wrongs, or acts is
generally inadmissible if offered solely to prove conduct in
conformity/propensity. In other words, the evidence can’t be
offered just to suggest that because the defendant tends to
do bad things, they are more likely to have committed the
charged crime.
23
EVIDENCE

NOTES EXAMPLE
D is charged with robbing bank A. The fact that D robbed bank B
6 months later would be inadmissible character evidence.

4.5.2 Admissible If Independently Relevant (MIMIC

Evidence)
Evidence of a person’s other crimes, wrongs, or acts
is admissible if relevant to some issue other than their
character or propensity to commit the crime charged (or the
alleged act in civil cases). In other words, if a defendant’s
other misconduct shows something specific about the
charged crime—something more than just bad character—
evidence of that misconduct may be admissible as bearing
on guilt. Such evidence is usually offered in criminal cases,
but it can also be used in civil cases (such as in tort actions
for fraud and assault).
Non-character purposes for offering the evidence may include
motive (for example, burning a building to hide embezzle-
ment), intent (to show guilty knowledge or lack of good faith),
absence of mistake or accident, identity (for example, “signa-
ture” crimes/modus operandi), or common plan or scheme
(usually, committing one crime to prepare for another).

The mnemonic device “MIMIC” is a convenient

CMR way to remember the most common non-propen-
Exam Tip
sity purposes for offering evidence of a defen-
dant’s other crimes or misconduct:
M otive
I ntent
M istake (absence of)
I dentity
C ommon plan or scheme

Even though “MIMIC evidence” is a helpful shorthand, keep

in mind that this is not a comprehensive list of permitted
purposes. The evidence can be admitted as long as it is
relevant to any purpose other than the defendant’s general
character or propensity to commit the charged crime.

24
 EVIDENCE

HYPO 4K NOTES
Defendant is charged with the murder of Officer Garcia.
The prosecution seeks to prove that Defendant was
convicted and imprisoned 5 years ago for narcotics sales
in the aftermath of an investigation and arrest made
by Officer Garcia. Defendant objects on the ground of
impermissible character evidence. What ruling?

HYPO 4L
Defendant is charged with possession of narcotics with
the intent to sell. He defends on the ground that he was
merely a possessor and user—not a seller—of the drugs.
The prosecution seeks to prove that Defendant sold drugs
a year ago in the vicinity of the arrest in the current case.
Admissible?

HYPO 4M
Lizzie Borden is accused of intentionally killing her mother
with an axe. Defense: accident. Prosecution seeks to show
that Lizzie threw a knife at her mother during a family
quarrel one week before the mother’s demise. Is the
evidence:
(1) Admissible because it shows Lizzie’s propensity for
violence?
(2) Admissible because it shows that the axe incident was
not an accident?

HYPO 4N
D is charged with the armed robbery of a Wal-Mart in
Austin early in the afternoon of July 1. Defense: mistaken
identity. Prosecution seeks to introduce evidence that
around noon on July 1, D robbed a Penney’s and a Sears in
Austin, in the same vicinity as the Wal-Mart. Result?

HYPO 4O
Defendant is prosecuted for robbing the First National
Bank. Defense: alibi. Prosecution introduces evidence that

25
EVIDENCE
the robber wore a red ski mask, carried a .38 caliber gun
NOTES and used a uniquely worded stick-up note. Prosecution
then seeks to prove that Defendant used the same modus
operandi when robbing the Second National Bank a year
ago. Result?

HYPO 4P
Defendant is charged with robbing the First National Bank.
The prosecution seeks to prove that 2 days before the
robbery, the Defendant stole a white Acura from a neighbor
in the same town. The robber of the First National Bank
used a white Acura for the “getaway.” Result?

a. Requirements for Admissibility

The misconduct may be proved by any evidence, such
as witness testimony, the defendant’s criminal conviction,
etc. There must be sufficient evidence to support a jury
finding that the defendant committed the other misconduct
(meaning, a reasonable juror could come to this conclu-
sion). Additionally, evidence of the misconduct is subject to
the usual Rule 403 standard (probative value must not be
substantially outweighed by danger of unfair prejudice, etc.).
z Notice Requirement in Criminal Cases
In a criminal case, the prosecutor must provide reason-
able notice of any evidence of this type that the prose-
cutor intends to offer at trial. Such notice usually must be
in writing and provided in advance of trial (but the court
may excuse lack of pretrial notice for good cause). The
notice must articulate the non-propensity purpose for
which the evidence will be offered and the reasoning
that supports the purpose.

MIMIC evidence is admissible only if the defendant

CMR is actually contesting the non-character issue (for
Exam Tip
example, identity or intent). Also remember that if
a MIMIC category is satisfied, the prosecution may use the
evidence of misconduct as part of its case-in-chief. In other
words, because MIMIC evidence is being offered for a
non-propensity purpose, it is admissible even if the defen-
dant does not “open the door” to character evidence.

26
 EVIDENCE

4.6 DEFENDANT’S SIMILAR MISCONDUCT IN NOTES

SEX-CRIME CASES
You have learned in this module that the use of propensity
evidence is subject to many restrictions, and that evidence
of specific acts of misconduct is never admissible to show
propensity. However, there is an important exception to this
rule. Evidence of a defendant’s other acts of sexual assault
or child molestation is admissible in a criminal or civil case
where the defendant is accused of committing an act of
sexual assault or child molestation. The party intending to
offer this evidence must disclose it to the defendant 15 days
before trial (or later with good cause).

Such evidence is relevant for any purpose, includ-

CMR ing the defendant’s propensity to commit sex
Exam Tip
crimes. This is the one situation where evidence of
a defendant’s specific acts is admissible to show their pro-
pensity to commit the act at issue in the case.

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EVIDENCE

NOTES 5 AUTHENTICATION, WRITINGS,

AND REAL EVIDENCE
Whenever you are faced with a writing on an
CMR Evidence question, be alert to 3 potential issues:
Exam Tip
(1) authentication, (2) best evidence rule, and (3)
hearsay. We’ll be covering authentication and the best
evidence rule in this module (along with some issues relat-
ing to real/demonstrative evidence).

5.1 AUTHENTICATION OF WRITINGS AND

SPOKEN STATEMENTS
As a general rule, a writing or any secondary evidence of its
content will not be received in evidence unless the writing
is authenticated by proof that shows that the writing is what
the proponent claims it is. The proof must be sufficient to
support a jury finding of genuineness (that is, a reasonable
juror could conclude that the writing is genuine).

5.1.1 Methods of Authentication

Parties may admit the genuineness of a document by the
pleadings or by stipulation. A document can also be authen-
ticated by other evidence, and the following are examples of
proper authentication.

a. Opponent’s Admission
A writing can be authenticated by evidence that the party
against whom it is offered has either admitted its authenticity
or acted upon it as authentic.

b. Eyewitness Testimony
A writing can be authenticated by testimony of anyone who
saw it executed or heard it acknowledged. The testimony
can be from anyone; it doesn’t have to be from a subscribing
witness unless required by statute.

c. Handwriting Verifications
A writing can be authenticated by evidence that the maker’s
handwriting is genuine. This evidence may be in the form of:
28
 EVIDENCE
• The opinion of a lay witness (nonexpert) who has famil-
iarity with the alleged writer’s handwriting in the course
NOTES
of normal affairs (not acquired for purposes of the current
litigation);

Remember that a nonexpert who does not have

CMR familiarity with the alleged writer’s handwriting
Exam Tip
cannot become familiar with it merely for purposes
of testifying. (Compare the rule for voice identifications infra.)

• The opinion of an expert who has compared the writing

to samples of the alleged writer’s handwriting; or

• The fact-finder’s ( jury’s) comparison of the writing to

samples of the alleged writer’s handwriting

HYPO 5A
During plaintiff’s case-in-chief, Witness testifies that, in her
opinion, the document was written by X because she is
familiar with X’s handwriting. X advises the judge that he
intends to testify during the defense that the document
is a forgery and argues that the judge cannot admit the
document into evidence until the judge is personally
convinced that the document was written by X. Good
argument?

d. Ancient Documents
A document can be authenticated by evidence that it:
• Is at least 20 years old when offered into evidence;
• Is in a condition that creates no suspicion as to authentic-
ity; and
• Was found in a place where such a writing would likely be
kept

In contrast to the rule in many jurisdictions, the

CMR ancient document provision of the Federal Rules
Exam Tip
applies to all writings, not just dispositive instru-
ments like deeds and wills.

29
EVIDENCE
Note that while documents may be authenticated if they
NOTES are at least 20 years old, the related hearsay exception
for ancient documents will only apply if the document was
prepared before 1998 (see 8.4.9, infra).

e. Reply Letter Doctrine

A writing can be authenticated by evidence that it was
written in response to a communication sent to the alleged
author.

EXAMPLE
P mails a properly addressed and posted contract offer to X, and
later receives an acceptance purportedly signed by X.

f. Photographs and Videos

Generally photos and videos Generally, photographs and videos are admissible only if
must be identified by witness identified by a witness as a portrayal of certain facts relevant
to be fair and accurate. to the issue and verified by the witness as a fair and accurate
Photographer generally not representation of those facts. Ordinarily, it is not necessary
required. to call the photographer to authenticate the photograph or
video; a witness familiar with the scene, object, or person is
sufficient.

HYPO 5B
Alice testifies that she observed the auto accident that
5B: Should be overruled. We
occurred at the intersection of Hickory and Elm Streets
need to determine if witness on July 1, 2021. She is shown a photograph and asked
has personal knowledge. whether it is a fair and accurate portrayal of the Hickory
and Elm intersection as she remembers it on July 1,
2021. “Objection: No foundation that Alice was the
photographer.” What ruling?

z Unattended Camera—Proper Operation of Camera

For unattended camera, we can If a photograph or video is taken when no person who
show that camera was properly could authenticate the scene is present, the photo-
graph or video may be admitted upon a showing that
functioning at that point in
the camera was properly operating at the relevant time
time. and that the photograph or video was downloaded from
that camera or developed from film obtained from that
camera.
30
 EVIDENCE

g. X-Ray Pictures, Electrocardiograms, Etc. NOTES

Unlike photographs, an X-ray cannot be authenticated by
testimony of a witness that it is a correct representation of the
facts. It must be shown that the process used is accurate, the An X-Ray cant be
machine was in working order, and the operator was qualified authenticated by witness.
to operate it. Finally, a custodial chain must be established to
assure that the X-ray has not been tampered with.

5.1.2 Compare—Authentication of Oral Statements

If statement is made by a
When a statement is admissible only if said by a particular
person (for example, as a statement by an opposing party), certain person, authentication
authentication as to the identity of the speaker is required. is needed to verify the identity
of the speaker.
a. Voice Identification
A voice can be identified by the opinion of anyone who has
heard the voice at any time, including after litigation has
begun and for the sole purpose of testifying.
b. Telephone Conversations
Statements made during a telephone conversation can be
authenticated by any party to the call who testifies that: (1)
they recognized the other party’s voice; (2) the speaker had
knowledge of certain facts that only a particular person
would have; (3) they called a particular person’s number and
a voice answered as that person or that person’s residence;
or (4) they called a business and talked with the person
answering the phone about matters relevant to the business.

5.1.3 Self-Authenticating Documents

Certain writings are said to “prove themselves.” Extrinsic
evidence of authenticity is not required for the following:
• Domestic public documents bearing a seal, and similar
official foreign public documents;
• Official publications (such as a government pamphlet);
• Certified copies of public records or private records on
file in a public office;
• Newspapers and periodicals;
• Trade inscriptions and labels;
• Acknowledged (notarized) documents;

31
EVIDENCE
• Commercial paper (including signatures thereon) and
NOTES related documents; and
• Business records, electronically generated records, and
data copied from an electronic device, if the records are
certified and the proponent gives the adverse party rea-
sonable written notice and an opportunity for inspection

5.2 BEST EVIDENCE RULE

BER includes writing, This rule is more accurately called the “original document
recording and photograph rule.” To prove the content of a writing, recording, or photo-
(X-Ray). graph (defined broadly to include videos, X-rays, and any
tangible collection of data; we’ll use “writing” as shorthand
going forward), the original writing must be produced if the
terms of the writing are material. Secondary evidence of
the writing, such as oral testimony, is admissible only if the
proponent provides a satisfactory excuse for the original’s
absence. The key inquiries are:
• What does it mean to “prove the contents” of a writing?
• What is an “original?”
• What are the exceptions to the best evidence rule?

HYPO 5C
5c: BER doesnt apply to shrimp Bubba ordered 100 pounds of shrimp from Gulf Shrimp
and only applies to writing. Co. pursuant to a written purchase order. In his suit for
breach of contract, Bubba takes the stand and testifies,
“I didn’t get what I ordered. The purchase order called
for 3-inch jumbo shrimp and they delivered 1-inch mini-
shrimp.” Which of the following would be a valid objection
to Bubba’s testimony?
(1) The actual shrimp are the best evidence of what was
delivered.
(2) The purchase order is the best evidence of what the
contract required.

5.2.1 Applicability of Best Evidence Rule

a. When Rule Applies
The rule applies in 2 principal situations:
32
 EVIDENCE
• Where the writing is a legally operative or dispositive
instrument (that is, the writing itself creates rights and
NOTES
obligations); or
BER applies to writing. It is
• Where the knowledge of a witness concerning a fact
results from having read it in the writing applied when (1)writing
creates rights (2)or when party
HYPO 5D is proving contents of the
Barney the Burglar is charged with breaking into a document/video.
warehouse. No one witnessed the break-in, but it was
captured on film by an unmanned surveillance camera. 5D: BER applies to videos.
Officer Sipowicz testifies that he watched the film and it Video is not legally operative
clearly shows Barney was the burglar. Objectionable? but the officer saw the video so
thus it is admissible.
b. When Rule Does Not Apply—Witness Has Personal
Knowledge of Facts
The rule does not apply where the witness has personal
knowledge of the fact to be proved, even if the fact happens Rule doesnt apply when
to also be recorded in a writing. Oral testimony of the fact witness has personal
may be given without producing the original writing that knowledge of the
recorded the event. document/video.

HYPO 5E
Alger Hiss is charged with committing perjury during his
testimony at a congressional hearing. At trial, a congressional
aide offers to testify to what Hiss said during the hearing.
True or False: The aide’s testimony is improper because the 5E: False. Aid is not testifying
transcript is the best evidence of what Hiss said. because she saw it, she is doing
so because she saw it.
HYPO 5F
Worker sues Boss for nonpayment of wages and failure to
reimburse for expenses.
5F: (1)Overruled because
(1) Without producing any documents, Worker testifies, “I documents are not legally
worked 100 hours and my expenses were $1,000.” Boss operative.
objects—“Best evidence rule. Produce the time sheets and
(2)Sustained. Because Boss
expense receipts.” Result?
knows what he saw.
(2) Without producing any documents, Boss testifies:
“Worker’s time sheets show she worked only 80 hours,
and the receipts show only $500 in expenses.” Result?

33
EVIDENCE

BEST EVIDENCE RULE

Best Evidence Rule Applies Best Evidence Rule

Does Not Apply

Party seeks to prove the contents of a If D denies having made a contract with
deed through witness testimony or other P, P may introduce secondary evidence
secondary evidence. to prove that a contract exists—but not
its contents.
Party seeks to prove the contents of a
contract through witness testimony or Witness may testify that he is 30 years
other secondary evidence. old and married, without producing the
respective certificates.
Party seeks to prove the contents of a
will through witness testimony or other Witness may testify to testimony he heard
secondary evidence. at a prior proceeding, without producing
a transcript.
In a breach of warranty case, a witness
seeks to testify to the contents of the Witness may testify that he is a real estate
written warranty, which she read. broker without producing his license
(if not material to the case).
Nurse seeks to testify regarding the
content of a medical record that she read. Nurse who took vital signs may testify to
them without producing a medical record.
In an obscenity or copyright trial for a
book, movie, photograph, etc., party Party may introduce a chart summarizing
seeks to introduce a newspaper review the personnel records of 500 employees.
or witness testimony.
Party may introduce a certified copy of a
In a case where P claimed D defrauded certificate of incorporation, the original of
her by selling her a gown she claimed which is on file with the secretary of state.
was an original “Halvenchy,” P seeks to
testify that she found a label in the arm W may testify about a plane crash she
of the gown stating that it was made by witnessed, despite the fact that the crash
L-Mart. was captured on home video.

Radiologist seeks to testify regarding the P may testify that D delivered a deed to
extent of P’s injuries he found in X-rays he her by handing it to her.
took, without producing the X-rays.

CMR Chart

34
 EVIDENCE

5.2.2 “Originals” and Admissibility of “Duplicates” NOTES

The terms “original” and “duplicate” are defined as follows:
• Original—The writing itself or any counterpart that is in-
tended by the person executing it to have the same effect
as an original. This includes the negative of a photograph
or any print of it, or the printout or other readable output
of electronically stored information.
• Duplicate—An exact copy of an original made by mechan-
ical means (for example, a photocopy or carbon copy).
Duplicates are admissible to the same extent as originals,
unless: (1) the circumstances make it unfair to admit the dupli-
cate, or (2) a genuine question is raised about the authen-
ticity of the original.

It is important to distinguish photocopies and Hand written copies are

CMR copies made by hand. Photocopies are duplicates secondary evidence.
Exam Tip
and, thus, are usually treated the same as origi-
nals. In contrast, handwritten copies are considered second-
ary evidence and are admissible only if the original or a
duplicate is unavailable.

5.2.3 Admissibility of Secondary Evidence of Contents

If the proponent cannot produce the original writing (or an Secondary Evidence:
admissible duplicate) in court, they may offer secondary 1. Handwritten Copy
evidence of its contents (such as handwritten copies, notes, 2. Notes
or oral testimony) if a satisfactory explanation is given for the 3. Oral Testimony
non-production of the original.
a. Excuses for Non-Production of Original
Valid excuses justifying the admissibility of secondary
evidence include:
• Loss or destruction of the original, unless the proponent
lost or destroyed the original in bad faith.
• The original cannot be obtained by any available judicial
process. Usually, this means that it is in possession of a
third party outside the jurisdiction and cannot be obtained
despite a reasonable effort.

35
EVIDENCE
• The original is in the possession of an adversary who,
NOTES after due notice, fails to produce the original.

b. No Degrees of Secondary Evidence

All types of secondary evidence If there is a valid excuse, the Federal Rules permit a party
is equal and acceptable so long to prove the contents of a writing by any type of secondary
as the justification has been evidence (such as handwritten copies, notes, oral testimony,
made. etc.). One type of secondary evidence is not preferred over
the other.

5.2.4 Exceptions to Best Evidence Rule

Exceptions to BER: a. Summaries of Voluminous Records

1. If the volume is too much When it would be inconvenient to examine a voluminous
collection of records in court, the proponent may present
then the proponent can give a
their contents in the form of a chart or summary. However,
summary but still make the the proponent must make the originals or duplicates avail-
record/duplicates available. able for inspection or copying, and the court may order the
2. certified public records dont proponent to produce the records in court.
have to be produced.
3. when writing is of little legal b. Certified Public Records
importance The rule does not apply to copies of public records that are
4. when the opponent has certified as correct or testified to as correct.
given testimony admitted to
c. Writing Is Collateral to Litigated Issue
the writing the contents the The rule does not apply where the writing is of minor impor-
writing doesnt have to be tance (that is, collateral) to the matter in controversy.
offered.
d. Testimony or Written Admission of Opponent
Where the opponent (meaning, the party against whom the
writing is being offered) has given testimony, a deposition, or
a written admission about the writing’s contents, the propo-
nent may use this evidence and need not give an excuse for
non-production of the original.

5.2.5 Functions of Court and Jury

Ordinarily, it is for the court to make determinations of fact
regarding admissibility of duplicates, other copies, and oral
testimony as to the contents of an original. However, the
Federal Rules reserve the following questions of preliminary
fact for the jury:

36
 EVIDENCE
• Whether the original ever existed;
NOTES
• Whether a writing produced at trial is an original; and
• Whether the evidence offered correctly reflects the con- Jury can determine some
tents of the original things about the veracity of
evidence produced.
5.3 REAL EVIDENCE
Real evidence is actual physical evidence addressed directly Real evidence can be direct or
to the trier of fact. Real evidence may be direct, circumstan- circumstantial.
tial, original, or prepared (demonstrative).

5.3.1 General Conditions of Admissibility

Real evidence must be relevant and meet the following legal Admissibility of Real Evidence:
requirements. 1. Authentication
2. Condition of Object
a. Authentication
The object must be identified as what the proponent claims it
to be, either by:

• Testimony of a witness that they recognize the

object as what the proponent claims it is (for
example, witness testifies that a gun is the one
found at the crime scene); or
• Evidence that the object has been held in a
substantially unbroken chain of possession (for
example, blood taken for blood-alcohol test)
The same standard of proof you’ve seen before applies to
real evidence—the proof must be sufficient to support a
jury finding of genuineness (that is, a reasonable juror could
conclude that the object is what the proponent claims it to be).

b. Condition of Object
If the condition of the object is significant, it must be shown
to be in substantially the same condition at trial.

5.3.2 Particular Types of Real Evidence

While the evidence below is often admissible, remember that
the court still has discretion to exclude it under Rule 403 if its
probative value is substantially outweighed by the danger of
unfair prejudice, waste of time, etc.

37
EVIDENCE

a. Reproductions and Explanatory Real Evidence

NOTES
Relevant photographs, diagrams, maps, or other reproduc-
tions are generally admissible. Items used entirely for explan-
Real evidence can be struck out atory purposes are permitted at a trial, but are usually not
in leiu of rule 403. admitted into evidence (meaning, they are not given to the
jury during its deliberations).
Types of real admissible
1. Explanatory evidence b. Maps, Charts, Models, Etc.
(but not admitted for Maps, charts, models, etc., are usually admissible for the
purpose of illustrating testimony, but must be authenticated
deliberations)
by testimonial evidence that they are faithful reproductions of
2. the object or thing depicted.

c. Demonstrations
The court, in its discretion, may permit experiments or
demonstrations to be performed in the courtroom. An
experiment must be performed under conditions that are
substantially similar to those attending the original event.
Demonstrations of bodily injury may not be allowed where
the demonstrations would unduly dramatize the injury.

d. Exhibition of Injuries
Exhibition of injuries in a personal injury or criminal case is
generally permitted, but remember that the court has discre-
tion to exclude this evidence for unfair prejudice.

e. Jury View of the Scene

The trial court has discretion to permit the jury to view places
at issue in the case. The need for the view and changes in
the condition of the premises following the events at issue in
the case are relevant considerations here.

38
 EVIDENCE

6 WITNESSES NOTES

6.1 COMPETENCY OF WITNESSES Witness must pass basic

Witnesses must pass tests of basic reliability to establish reliability test. They are
their competency to give testimony, but they are generally presumed to be reliable unless
presumed to be competent until the contrary is established. proved otherwise.
Witness must have:
6.1.1 Federal Rules of Competency 1. give oath
The Rules do not specify any mental or moral qualifications 2. have personal knowledge of
for witness testimony beyond these 2 limitations:
the fact/occurence
• There must be evidence sufficient to support a finding
that the witness has personal knowledge of the matter
about which they are to testify (note that proof of person-
al knowledge may consist of the witness’s own testimo-
ny); and

• The witness must give an oath or affirmation to testify

truthfully

If a witness requires an interpreter, the interpreter must be

qualified and take an oath to make a true translation.

6.1.2 Modern Modifications of the Common Law

Disqualifications
The Federal Rules have removed the common law witness
disqualifications for lack of religious belief, conviction of a
crime, and interest in the lawsuit. In other words, these issues
do not affect competency. Other common law disqualifica-
tions are modified as follows.

a. Children—Case-by-Case Determination
The competency of a child depends on the capacity and
intelligence of the particular child as determined by the trial
judge.

b. Insanity
An insane person may testify, provided they understand the
obligation to speak truthfully and have the capacity to testify
accurately.

39
EVIDENCE

c. Judge and Jurors

NOTES
The presiding judge may not testify as a witness. Likewise,
jurors are incompetent to testify before the jury in which they
are sitting.

z Jurors—Inquiry into Verdict or Indictment

During an inquiry into the validity of a verdict or indict-
ment, a juror is generally prohibited from testifying about
what occurred during deliberations or about anything
that may have affected a juror’s vote, and the court may
not receive evidence of a juror’s statement on such
matters. However, a juror may testify as to:

• Whether any extraneous prejudicial information was

improperly brought to the jury’s attention;
• Whether any outside influence was improperly
brought to bear on any juror;
• Whether there is a mistake on the verdict form; or
• Whether any juror made a clear statement that they
relied on racial stereotypes or animus to convict a
criminal defendant. The rationale for allowing this
evidence is to permit the court to determine whether
the defendant’s 6th Amendment right to a jury trial was
violated. Not every comment indicating racial bias will
qualify; the court must find that racial animus was a sig-
nificant motivating factor in the juror’s vote to convict.

6.1.3 Dead Man Acts

In a civil case, in some states a Ordinarily, a witness is not disqualified merely because they
have an interest in the outcome of the litigation. However,
predecessor who is interested
some states have what are known as “Dead Man Acts.”
in a decedent's estate or any These statutes provide that in a civil case, an interested
personal transaction is person (or their predecessor in interest) is incompetent to
considered incompetent to testify to a personal transaction or communication with a
testify. deceased, when such testimony is offered against the repre-
sentative or successors in interest of the deceased. A person
is “interested” if they stand to gain or lose by the judgment,
or if the judgment may be used for or against them in a
subsequent action.

40
 EVIDENCE

HYPO 6A NOTES
Shania sued Elvis for breach of an oral contract. Elvis
denied that any contract was made. Elvis died before trial. 6A: (1) Admissible. There is no
(1) May Shania testify to what Elvis said and did in Federal Dead Man's rule.
negotiating the contract? (2) Admissible.

(2) May Shania’s friend Faith, who witnessed the making of

the contract, testify to what Elvis said and did?

There is no Dead Man Act in the Federal Rules, but

CMR a state Act will apply in federal cases where state
Exam Tip
law, under the Erie doctrine, provides the rule of
decision (most diversity cases). Thus, you should apply the
Dead Man Act rules on the Multistate examination only if a
question explicitly states that the particular jurisdiction in
which the case arises has a Dead Man Act.

6.2 FORM OF QUESTIONING

The Federal Rules state that the judge should exercise
reasonable control over the examination of witnesses in
order to aid the ascertainment of truth, to avoid wasting time,
and to protect witnesses from harassment. The following
rules apply, but keep in mind that the judge ultimately has
discretion to control the questioning.

6.2.1 Leading Questions Leading questions suggest the

Leading questions (questions that suggest the desired
desired answer. Generally
answer) are generally allowed only on cross-examination
and are not permitted on direct examination. However, allowed on CE but not on DE.
the court will ordinarily allow leading questions on direct Sometimes permitted on DE.
examination in the following circumstances: Three exceptions.

• To elicit preliminary or introductory matter;

• When the witness needs help responding because of loss
of memory, immaturity, or physical or mental weakness; or
• When the witness is hostile, an adverse party, or a wit-
ness affiliated with an adverse party

41
EVIDENCE

NOTES 6.2.2 Scope of Cross-Examination

A party has a right to cross-examine any opposing witness,
but the scope of cross-examination is frequently a matter of
Scope of CE is limited to the
judicial discretion. Cross-examination is generally limited to:
DE and should test the
credibility of the witness. • The scope of direct examination, including all reasonable
inferences that may be drawn from it, and
• Matters that test the credibility of the witness (the per-
mitted methods of impeachment are covered in the Im-
peachment module)

6.2.3 Improper Questions and Answers

Questions that are misleading (cannot be answered without
making an unintended admission), compound (requiring a
single answer to more than one question), argumentative,
conclusionary, cumulative, unduly harassing or embarrassing,
call for a narrative answer or speculation, or assume facts
not in evidence are improper and are not permitted. Answers
that lack foundation (the witness has insufficient personal
knowledge) and answers that are nonresponsive (do not
answer the specific question asked) may be stricken.

6.3 USING DOCUMENTS TO AID ORAL

TESTIMONY
As a general rule, a witness cannot read their testimony from
a prepared memorandum; they must testify on the basis of
their current recollection. However, a memorandum or other
record may be used in certain circumstances.

Any time you encounter an exam question in

CMR which a witness consults a writing, keep in mind
Exam Tip
the differences between refreshing recollection
and recorded recollection, which are covered below. The
fact patterns are very similar and could be confusing if you
have not thoroughly memorized the distinguishing features.

6.3.1 Refreshing Recollection—Present Recollection

Revived
A witness may use any writing or object for the purpose of

42
 EVIDENCE
refreshing their present recollection. They usually may not
read from the writing while testifying because the writing is
NOTES
not authenticated and not in evidence (and thus, there is no
hearsay concern).

HYPO 6B
Homer’s house was burglarized 2 years ago, and several 6B: (1)Objection overruled.
valuable items were stolen. Homer sued his insurer (2) Cant read out loud.
for failing to pay the loss covered by his homeowner’s
policy. While on the stand at trial, Homer has trouble
remembering all of the stolen items. To refresh Homer’s
recollection, his attorney shows him a copy of a list of the
missing items that Homer prepared for the police the day
after the burglary. Insurer objects on the ground of lack of
authentication, best evidence rule, and hearsay.
(1) What ruling?
(2) If Homer’s recollection is refreshed, may he then read
the list into evidence?

a. Safeguards Against Abuse—Adverse Party’s Options

Whenever a witness has used a writing to refresh their
memory while on the stand, an adverse party is entitled to:

• Have the writing produced at trial;

• Cross-examine the witness about the writing; and
• Introduce portions of the writing relating to the witness’s
testimony into evidence
If the witness refreshed their memory before taking the
stand, an adverse party is entitled to the above options only
if the court decides that justice requires it.
z Failure to Produce or Deliver Writing
In a criminal case, if the prosecution fails to produce or
deliver a writing as ordered, the judge must strike the
witness’s testimony—and, if justice requires, declare a
mistrial. (When the defense or a party in a civil case fails
to comply, the judge has more discretion and can issue
“any appropriate order.”)

43
EVIDENCE

NOTES 6.3.2 Past Recollection Recorded—Recorded

Recollection
6C: It is hearsay but this is an HYPO 6C
exception. In the previous hypo, Homer looks at the list of stolen items
he prepared for the police the day after the burglary. It fails
to jog his memory, and he is still unable to testify on the basis
of current recollection. At this point, Homer’s attorney seeks
to read the list into evidence. Objection: hearsay. Result?

Where a witness states that they have insufficient recollec-

tion of an event to enable them to testify fully and accurately,
even after they have consulted a memorandum or other
record given to them on the stand, the record itself may be
read into evidence if a proper foundation is laid. The founda-
tion must include proof that:
• The witness has insufficient recollection to testify fully
and accurately (that is, showing the document to the wit-
ness fails to jog their memory);
• The witness had personal knowledge of the facts in the
record when the record was made;
• The record was made by the witness or under their direc-
tion, or it was adopted by the witness;
• The record was made when the matter was fresh in the
witness’s mind; and
• The record accurately reflects the witness’s knowledge.
In other words, even though the witness cannot currently
remember the facts, this requirement is satisfied where
the witness vouches for the accuracy of the record at
the time that it was made or adopted.

Although the record may be read into evidence and

CMR heard by the jury, it cannot be admitted into evi-
Exam Tip
dence as an exhibit unless offered by an adverse
party. The rationale is that we don’t want the jury giving the
record undue weight; it should serve as a substitute for the
witness’s testimony and nothing more. While this may seem
like a minor point, it tends to come up on the bar exam.

44
 EVIDENCE

HYPO 6D NOTES
After laying a foundation, Homer’s attorney seeks to
introduce Homer’s memorandum into evidence as an exhibit. 6D: (1) No
(1) Proper? (2)No
(2) May the insurer have the memorandum introduced as same safeguards apply for
an exhibit? recorded and refreshed
recollection.

PRESENT RECOLLECTION REFRESHED

VS. RECORDED RECOLLECTION

Present Recollection Refreshed Recorded Recollection

Any writing may be used to refresh a Only a record that meets several
witness’s memory. (Things other than foundational requirements (e.g.,
a writing may also be used, e.g., timely made by witness; witness cannot
a photograph.) remember the events after reading the
record) may be used.

The witness cannot read from the The record itself is read into evidence
writing while testifying. (but is not received as an exhibit unless
offered by an adverse party).

There is no hearsay problem, because This is hearsay, but it falls within a

the writing is not offered into evidence. specific exception to the hearsay rule.

CMR Chart

6.4 OPINION TESTIMONY

The general policy of the law is to prohibit admissibility of
opinion evidence except in cases where the courts are sure
that it will be necessary or at least helpful.
6.4.1 Opinion Testimony by Lay Witnesses
a. Requirements
Opinions by lay (nonexpert) witnesses are generally inadmis-
sible. However, there are many cases where no better
45
EVIDENCE
evidence can be obtained. Opinion testimony by a lay
NOTES witness is admissible when it is:

• Rationally based on the witness’s perception;

• Helpful to a clear understanding of the witness’s testimo-
ny or helpful to the determination of a fact in issue; and
• Not based on scientific, technical, or other specialized
knowledge

ADMISSIBLE OPINIONS OF LAY WITNESSES

1. General Appearance or 5. Speed of Moving Object

Condition of a Person “The truck was going very fast” or
“He was about 80 years old.” (if experienced in estimating rates
or “She seemed ill.” of speed), “The truck was going at
least 60 miles per hour.”

2. State of Emotion 6. Value of Own Services

“She was angry.” or “My time is worth $50 per hour.”
“He was distraught.”

3. Matters Involving Sense 7. Rational or Irrational Nature of

Recognition Another’s Conduct
“The suitcase was heavy.” “He was acting crazy.”
or “He smelled of garlic.”

4. Voice or Handwriting Identification 8. Intoxication

(Foundation required) (Foundation may be required)
“It sounded like Mark.” or “She was slurring her words and
“That’s Fran’s handwriting.” smelled of gin. She was drunk.”

CMR Chart

46
 EVIDENCE

b. Situations Where Opinions of Lay Witnesses Are NOTES

Admissible
An opinion of a lay witness is generally admissible with
respect to:
• The general appearance or condition of a person;
• The state of emotion of a person;
• Matters involving sense recognition;
• Voice or handwriting identification;
• The speed of a moving object;
• The value of the witness’s own services or property;
• The rational or irrational nature of another’s conduct; and
• A person’s intoxication
c. Situations Where Opinions of Lay Witnesses Are Not
Admissible
A lay witness cannot give an opinion as to whether they (or
someone else) acted as an agent or whether a contract was
made, as these are legal conclusions that require special-
ized knowledge. The lay witness may testify only as to the
surrounding facts.

6.4.2 Opinion Testimony by Expert Witnesses

a. Requirements for Admissibility
For expert testimony to be admissible: (1) the subject matter
must be one where scientific, technical, or other specialized
knowledge would assist the trier of fact; (2) the opinion must
be based on sufficient facts or data; (3) the opinion must be
the product of reliable principles and methods; and (4) the
expert must have reliably applied the principles and methods
to the facts of the case.

z Qualification as Expert
The witness must be qualified as an expert. This require-
ment is satisfied if they possess special knowledge, skill,
experience, training, or education.

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EVIDENCE

z Proper Factual Basis

NOTES
The expert’s opinion must be supported by a proper
factual basis. The opinion can be based on any of the
following 3 possible sources of information:
• Facts based on the expert’s own personal observa-
tion (for example, the expert personally examined the
injured plaintiff).
• Facts made known to the expert at trial (for example,
the expert reviews testimony from the trial, or counsel
relates the facts to the expert on direct examination in
the form of a hypothetical question).
• Facts not known personally but supplied to the expert
outside the courtroom and of a type reasonably relied
upon by other experts in the particular field. Such
facts need not be admissible as evidence. But if the
facts would be inadmissible, the proponent of the ex-
pert testimony must not disclose the facts to the jury
unless the court determines that their probative value
in helping the jury evaluate the expert’s opinion sub-
stantially outweighs their prejudicial effect (note that
this is a reverse-Rule 403 balancing test that favors
nondisclosure).

HYPO 6E
Dr. Seuss, a board-certified child psychiatrist, testifies,
6E: (1) Admissible “In my opinion, within a reasonable degree of medical
(2) No. This is hearsay. probability, Bartholomew Cubbins’s preoccupation with
hats is a disabling psychosis. My opinion is based on (a)
my own clinical interviews and tests of Bartholomew;
(b) exhibits 1 and 2 in evidence (MRI test results,
medical office records of Dr. Grinch); (c) interviews of
Bartholomew’s friends Wump, Gump, and Thump; and (d) a
written report prepared by Dr. Sam I. Am.
(1) Bartholomew moves to strike Dr. Seuss’s opinion
because it is based, in part, on inadmissible hearsay. Result?
(2) Should Dr. Seuss be permitted to testify further, “Let me
read to you what Wump said during our interview . . . and
here’s what was in Dr. Sam I. Am’s report”?

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 EVIDENCE
Unless the court orders otherwise, the expert need not
disclose the basis of the opinion on direct examination.
NOTES
However, the expert may be required to disclose such
information on cross-examination.
z Reasonable Probability
The expert must possess reasonable probability
regarding their opinion. A mere guess or speculation is
not sufficient.
z Reliability—Judge as Gatekeeper
Federal courts determine the reliability of all expert
testimony (scientific or otherwise). Although courts have
discretion to consider a wide variety of factors in making
this determination, there are 4 principal Daubert factors
that courts use to determine the reliability of experts’
principles and methodologies. The “TRAP” mnemonic
may help you remember them:
• Testing of principle or methodology
• Rate of error
• Acceptance by experts in the same discipline
• Peer review and publication
b. Use of Learned Treatises During Examination
A relevant excerpt from a treatise, periodical, or pamphlet
may be used during expert testimony. Under the Federal
Rules, these “learned treatises” can be used not only to
impeach experts, but also as substantive evidence (that is, to
prove that what the treatise says is true) under the “learned
treatise” exception to the hearsay rule (see 8.4.8, infra),
subject to the following limitations:
• The treatise must be established as reliable authority by:
(1) the testimony of the expert on the stand, (2) the testi-
mony of another expert, or (3) judicial notice;
• The excerpt must be used in the context of expert tes-
timony (meaning, it is called to the attention of an expert
witness on cross-examination, or relied upon by an expert
witness during direct examination); and

49
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• The excerpt is read into evidence but cannot be received
NOTES as an exhibit

c. Opinion on Ultimate Issues

An expert is generally permitted to render an opinion as to
the ultimate issue in the case (for example, “X was drunk” or
“X was insane” or “That is X’s signature on the document”).
However, in a criminal case in which the defendant’s mental
state constitutes an element of the crime or defense, an
expert may not state an opinion as to whether the accused
did or did not have the mental state in issue.

HYPO 6F
6F:(2) is the answer because it
In a personal injury case, Defendant is alleged to have
is not assisted. (1) is almost been driving recklessly at the time of a car accident.
never the answer. Witness who observed the event testifies that Defendant
looked angry, smelled of alcohol, and drove away from
the scene at 80 m.p.h. Witness then states, “It looked
to me as though Defendant was engaged in conduct
constituting a reckless disregard for the safety of others.”
Objectionable?
(1) Yes, because Witness is testifying to the ultimate issue.
(2) Yes, because Witness’s opinion is not helpful.

d. Court-Appointed Experts
A court has broad discretion to appoint expert witnesses
(although this rule does not limit any party’s right to call its
own experts). On a party’s motion or its own, the court may
order the parties to show cause why experts should not be
appointed and may ask the parties to submit nominations.
The court may then appoint any expert who consents to act,
and the court must inform the expert of their duties. The
expert must advise the parties of any findings they make,
and any party may depose the expert, call the expert as a
witness, or cross-examine the expert. The expert is entitled
to reasonable compensation as set by the court. The court
may authorize disclosure to the jury that the expert was
appointed by the court.

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6.5 EXCLUSION AND SEQUESTRATION OF NOTES

WITNESSES
Upon a party’s request, the trial judge must order witnesses
excluded from the courtroom. The judge may also do this on
their own motion. The judge, however, must not exclude: (1)
a party or a designated officer or employee of a party, (2) a
person whose presence is essential to the presentation of a
party’s claim or defense, or (3) a person statutorily authorized
to be present.

6.6 WITNESSES CALLED OR EXAMINED BY

THE COURT
The court may examine a party’s witness or call its own
witness. Each party is entitled to cross-examine a witness
called by the court. A party may object to the court’s
examining or calling a witness either at that time or at the
next available opportunity when the jury is not present.

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NOTES 7 IMPEACHMENT
7.1 GENERAL CONCEPTS
Impeachment refers to discrediting a witness. When evidence
is admissible only to impeach, it is not being offered as
substantive evidence (that is, to prove some fact at issue in
the case) but to show that the witness can’t be trusted.

7.1.1 Accrediting or Bolstering Generally Prohibited

Generally, a party is not permitted to bolster or accredit the
testimony of their witness (for example, by introducing a prior
statement by the witness that is consistent with their testi-
mony) until the witness has been impeached.

HYPO 7A
(1) Plaintiff calls Witness 1 to the stand. Witness 1 testifies
that she saw Defendant’s car run the red light. Defense
counsel states that she has no questions for the witness.
After Witness 1 steps down, Plaintiff calls Witness 2, who
testifies, “Witness 1 has a good reputation for truthfulness.”
Objectionable?
(2) Variation: Witness 1, after testifying that she saw
Defendant’s car run the red light, then testified, “I told
everyone at work the next day that I had seen Defendant
run the red light.” Result?

a. Exceptions to Rule Against Bolstering

In certain cases, a party may offer evidence that the witness
made a timely complaint (in a sexual assault case, for
example) or a prior statement of identification (usually,
identifying the defendant as the perpetrator of the charged
crime) even if this tends to bolster their in-court testimony.
The prior identification may also serve as substantive
evidence that the identification was correct (see the Hearsay
module).

7.1.2 Any Party May Impeach

Under the Federal Rules, a witness may be impeached by
any party, including the party who called them.

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 EVIDENCE

CMR
When a question involves a party impeaching their NOTES
Exam Tip
own witness, be sure to avoid the following wrong
answer choices reflecting the traditional rule,
which prohibited impeaching your own witness unless the
witness:

(1) Is an adverse party or identified with an adverse party;

(2) Is hostile and affirmatively uncooperative;

(3) Is one whom the party is required by law to call; or

(4) Gives surprise testimony that is affirmatively harmful to

the party calling them.

7.2 IMPEACHMENT METHODS

A witness may be impeached either by (1) cross-examina-
tion (eliciting facts from the witness that discredit their own
testimony) or (2) extrinsic evidence (calling other witnesses
or introducing documents that prove the impeaching facts).
Certain grounds for impeachment require that a foundation
be laid during cross-examination before extrinsic evidence
can be introduced. Other grounds allow impeachment to be
accomplished only by cross-examination and not by extrinsic
evidence. (Note: The term “cross-examination” is used for
convenience because it is usually an adverse witness who is
impeached. But remember that a party may impeach their own
witness, which would be on direct or redirect examination.)

In the discussion that follows:

• Impeachment methods 1-4 (prior inconsistent statements;

bias; sensory deficiencies; contradiction) involve impeach-
ing a witness with facts that are specific to the current
case; and
• Impeachment methods 5-7 (opinion or reputation ev-
idence of untruthfulness; prior convictions; bad acts)
involve impeaching a witness with their general bad char-
acter for truthfulness

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NOTES 7.2.1 Prior Inconsistent Statements

A party may show, by cross-examination or extrinsic
evidence, that the witness has, on another occasion, made
statements inconsistent with their present testimony. To
prove the statement by extrinsic evidence, a proper founda-
tion must be laid and the statement must be relevant to some
issue in the case.

HYPO 7B
Defendant is sued for negligence in a multi-vehicle accident
in which he was driving his Suburban. Witness testifies for
Plaintiff that she saw the Suburban run the stop sign.
(1) On cross-examination, may Defendant’s counsel seek to
establish that a few days after the accident, Witness told
the police that the Jeep Cherokee, not the Suburban, ran
the stop sign?
(2) If Witness admits she made the prior inconsistent
statement, may Defendant use the statement as
substantive evidence that the Jeep Cherokee, rather than
the Suburban, ran the stop sign?

Most inconsistent statements are clearly contradic-

CMR tory (for example, the witness testifies that the
Exam Tip
light was red, but previously told someone that the
light was green). A prior statement that omits a fact asserted
during the current testimony may constitute an inconsisten-
cy if it would have been natural for the witness to include
the fact in the statement if they believed it to be true. On its
own, a witness’s present lack of memory of a fact is gener-
ally not inconsistent with a prior statement relating that fact
(however, the court may find an inconsistency where the
witness’s memory loss appears to be feigned). On the other
hand, if the witness remembers the fact on the stand, but
didn’t remember the fact in the prior statement, the earlier
lack of memory is generally considered inconsistent.

a. When Admissible as Substantive Evidence

Usually, prior inconsistent statements are hearsay,

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admissible only for impeachment purposes. If, however,
a testifying witness’s prior inconsistent statement was
NOTES
made under oath at a prior proceeding, it is admissible
nonhearsay and may be admitted as substantive evidence
of the facts stated (see the Hearsay module). The rationale
is that the statement is reliable because of the oath, and
because the witness is now subject to cross-examination
about the statement.

EXAMPLE
Suppose that Witness in Hypo 7B made her prior inconsistent
statement about the Jeep Cherokee during a pretrial deposition
in which she gave sworn testimony. This would be admissible to
prove that the Jeep Cherokee, in fact, ran the stop sign.

b. Foundation for Extrinsic Evidence

Extrinsic evidence can be introduced to prove a prior incon-
sistent statement only if, at some point:

• The witness is given an opportunity to explain or deny

the statement; and
• The adverse party is given an opportunity to examine
the witness about the statement

Remember that under the Federal Rules, the

CMR opportunity to explain or deny can be given be-
Exam Tip
fore or after introduction of the extrinsic evidence.
(In some states, the opportunity must be given before the
extrinsic evidence is introduced, but the MBE tests the
Federal Rules.)

z Exceptions to Foundation Requirement

The foundation requirement above (giving the witness
an opportunity to explain or deny; allowing the adverse
party to examine them) does not apply in the following
circumstances:

• The foundation requirement does not apply if the prior

inconsistent statement is an opposing party’s state-
ment (see the Hearsay module).

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NOTES HYPO 7C
In an auto accident case, Plaintiff testifies that she
was wearing her seat belt. Defendant does not cross-
examine her. During the defense, Defendant calls Joe the
Bartender, who testifies that Plaintiff told him, at Joe’s bar
a week after the accident, that she had NOT been wearing
her seat belt.
(1) Should Plaintiff’s motion to strike be granted on
the ground that Plaintiff was not given an immediate
opportunity to explain or deny the inconsistency?
(2) Is Plaintiff’s statement admissible to impeach Plaintiff
AND as substantive evidence that she was not wearing
her seat belt?

• As discussed in 7.4, below, an inconsistent statement

by a hearsay declarant can be used to impeach the
hearsay declarant despite the lack of a foundation.
• The court may dispense with the foundation require-
ment where justice requires (for example, when the
witness has left the stand and is unavailable when
their inconsistent statement is discovered).

7.2.2 Bias or Interest

Evidence that a witness is biased or has an interest in the
outcome of a case tends to show that the witness has a
motive to lie.

EXAMPLES
A witness is a friend, relative, or employee of a party; an expert
witness is being paid by a party; a witness has a grudge against
a party, etc.

a. Foundation for Extrinsic Evidence

Because impeachment with bias is not specifically addressed
by the Federal Rules, much is left to the court’s discretion.
The majority rule is that before a witness can be impeached
by extrinsic evidence of bias or interest, they must first
be asked about the facts that show bias or interest on

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cross-examination. Note that the court has discretion to
permit extrinsic evidence even if the witness admits the bias.
NOTES

Watch for facts indicating that the foundation

CMR requirement for extrinsic evidence of bias or
Exam Tip
interest has been fulfilled. Evidence that is other-
wise inadmissible (such as arrests or liability insurance) may
be introduced if relevant to bias, provided the proper foun-
dation is laid.

7.2.3 Sensory Deficiencies

A witness may be impeached by showing, either on cross-ex-
amination or by extrinsic evidence, that their faculties of
perception and recollection were so impaired as to make
it doubtful that they could have perceived those facts.
A witness may also be impeached by showing that they had
no knowledge of the facts to which they testified. There is no
foundation requirement for proving the sensory deficiency
with extrinsic evidence (meaning, the witness does not need
to be confronted with the impeaching fact).

EXAMPLES
Bad eyesight or hearing; poor memory; consumption of alcohol
or drugs at the time of the event or while on the witness stand.

7.2.4 Contradictory Facts

Although not specifically addressed in the Federal Rules,
impeachment by contradiction is a recognized method of
impeachment. The cross-examiner, while questioning the
witness, can try to make the witness admit that they lied
or were mistaken about some fact they testified to during
direct examination. If the witness admits the mistake or lie,
they have been impeached by contradiction. However, if
the witness sticks to their story, the issue becomes whether
extrinsic evidence may be used to prove the contradictory
fact. The answer is yes, extrinsic evidence is permitted
unless the contradictory fact is collateral (meaning, it has
no significant relevance to the case or to the witness’s credi-
bility; see 7.3, below).

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NOTES HYPO 7D
In an auto accident case, Witness testifies for Plaintiff that,
while leaning against a maple tree near the intersection of
Yale and Harvard on March 1, he saw that the traffic light
was red for Defendant as his car entered the intersection
and hit Plaintiff. On cross-examination, Witness is asked
(a) “Isn’t it a fact that the tree near the intersection of Yale
and Harvard is an oak?” and (b) “Isn’t it a fact that the
traffic light at the intersection of Yale and Harvard was
not functioning at all on March 1?” Witness insists that his
direct testimony was accurate.
(1) During the defense, may Defendant properly prove that
the tree at Yale and Harvard is an oak tree?
(2) During the defense, may Defendant properly call a police
officer to testify that the traffic light at the intersection of
Yale and Harvard was not functioning at all on March 1?

7.2.5 Opinion or Reputation Evidence of

Untruthfulness
A witness can be impeached with reputation or opinion
evidence of their own bad character for truthfulness, to
suggest that they were not telling the truth while on the
stand. This is accomplished by calling a character witness
to testify about the target witness’s bad reputation or the
character witness’s low opinion of the target witness.

HYPO 7E
Larry testifies for the prosecution that he saw Defendant
commit the crime. During the defense: Defendant calls
Reverend Al to testify that Larry has a lousy reputation
for truthfulness among members of Reverend Al’s
congregation, and in Reverend Al’s opinion, Larry is not a
truthful person.
(1) Admissible to suggest Larry’s testimony is false?
(2) May Reverend Al follow up his opinion as follows: “Let
me tell you how I reached my opinion of Larry. During the
past year, he lied to me on 6 separate occasions”?

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7.2.6 Conviction of Crime NOTES

A witness may be impeached by proof of a conviction (an
arrest or indictment is not sufficient) for certain crimes. A
pending review or appeal does not affect the use of a convic-
tion for impeachment.

a. Type of Crime

z Any Crime Involving Dishonesty or False Statement

A witness may be impeached by any crime, felony or
misdemeanor, requiring an act of dishonesty or false
statement. The court has no discretion to bar impeach-
ment by these crimes.

Although many crimes are arguably dishonest in

CMR nature, courts interpret this category narrowly to
Exam Tip
include only crimes in the nature of “crimen falsi”
(for example, perjury, false statement, criminal fraud, embez-
zlement, false pretense). Simple theft, for example, is not
considered a crime of dishonesty or false statement. Look
for a crime that involves some “uttering or writing of false
words.”

z Felony Not Involving Dishonesty or False Statement

A witness may also be impeached by a felony that
does not involve dishonesty or false statement, but the
court has discretion to exclude these convictions. The
balancing test depends on whether the witness is the
defendant in a criminal case, or someone else:

• If the witness being impeached is a criminal de-

fendant, the court will exclude the conviction if the
prosecution has not shown that its probative value
outweighs its prejudicial effect. (This is a more difficult
balancing test than for other witnesses.)
• In the case of all other witnesses, the court will ex-
clude the conviction if it determines that its probative
value is substantially outweighed by its prejudicial
effect. This is the standard Rule 403 balancing test,
which favors admitting the evidence.

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EVIDENCE

b. Remote Convictions Generally Not Admissible

NOTES
Generally, if more than 10 years have elapsed since the date
of conviction or the date of release from confinement (which-
ever is later), the conviction is inadmissible.

HYPO 7F
Defendant is prosecuted for arson. At trial, Defendant
testifies on his own behalf, urging that the fire was an
accident. On cross-examination, may the prosecutor
properly ask Defendant:
(1) Whether he was convicted 8 years ago for the
misdemeanor of income tax fraud?
(2) Whether he was released from prison 9 years ago for
his misdemeanor conviction for possession of marijuana?
(3) Whether he was convicted 2 years ago for the
misdemeanor of shoplifting?
(4) Whether he was convicted 5 years ago for felony
assault?

z Court May Admit in Extraordinary Circumstances

The court may admit an older conviction if: (1) its proba-
tive value substantially outweighs its prejudicial effect
(a reverse-Rule 403 balancing test that strongly favors
exclusion); and (2) the proponent gives the adverse party
reasonable written notice of their intent to use it.

c. No Foundation Required for Extrinsic Evidence

A prior conviction is usually shown by either direct or
cross-examination of the witness or by introducing a record
of the judgment, although other methods of proof (such as
testimony from witnesses) may be permitted. No founda-
tion is necessary. Note that if a party introduces evidence
of their own prior conviction (to take out the sting of being
impeached on cross-examination), they cannot later claim on
appeal that the conviction was erroneously admitted.

d. Effect of Pardon
A conviction cannot be used to impeach a witness if the

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 EVIDENCE
conviction was subject to a pardon or equivalent procedure,
and either:
NOTES

• The pardon was based on rehabilitation, and the witness

has not been convicted of a subsequent felony; or
• The pardon was based on innocence (irrespective of any
subsequent convictions)
e. Juvenile Convictions Generally Not Admissible
Juvenile offenses are generally not admissible for impeach-
ment purposes. However, in a criminal case, the judge
has the discretion to admit evidence of a juvenile offense
committed by a witness other than the accused if the
evidence would be admissible to attack the credibility of an
adult and if the evidence is necessary to a determination of
the accused’s guilt or innocence.

f. Constitutionally Defective Conviction Cannot Be

Used
A conviction obtained in violation of the defendant’s consti-
tutional rights is invalid for all purposes, including impeach-
ment.

7.2.7 Bad Acts Involving Untruthfulness

Subject to discretionary control of the trial judge, a witness
may be interrogated upon cross-examination with respect
to an act of misconduct if the act is probative of truthfulness
(that is, an act of deceit or lying). The cross-examiner must
have a good-faith basis to believe the witness committed the
misconduct.

a. Extrinsic Evidence Not Permitted

Extrinsic evidence of the bad acts is not permitted. In other
words, this method of impeachment can be accomplished
only by cross-examination of the witness. Additionally,
the cross-examiner cannot refer to any consequences the
witness may have suffered as a result of their bad act. The
rationale is that the consequence (such as an arrest, termi-
nation, etc.) is, in essence, a third person’s opinion that the
witness committed the act, and thus a form of extrinsic
evidence.

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EVIDENCE

NOTES Remember that asking about bad acts does not

CMR include inquiring about arrests. An arrest itself is
Exam Tip
not a bad act. Thus, it is permissible to ask a
witness whether they embezzled money from their employ-
er. It is not permissible to ask them whether they were
arrested for embezzlement.

HYPO 7G
Witness gives favorable testimony for Defendant. On
cross-examination, Plaintiff asks Witness whether she
assaulted her mail carrier 2 years ago (no charges were
ever brought). Objectionable?

HYPO 7H
After Witness testifies for Defendant, Plaintiff asks Witness
whether she made false statements in an application for
food stamps in July 2010 (no charges were ever brought).
Objectionable?

HYPO 7I
Same cross-examination. Witness vehemently denies
making false statements in the application for food stamps.
May Plaintiff thereafter call a welfare agent to prove that
Witness made the false statements?

HYPO 7J
Federal prosecution of Dieter. Hans testifies for Dieter. On
cross-examination, Hans is asked whether he was arrested
3 years ago for passing counterfeit money. Objectionable?

HYPO 7K
Prosecution of Donald. Winston testifies for the
prosecution. On cross-examination, Winston is asked
whether he was arrested a month ago for selling marijuana
and is awaiting trial on those charges. Permitted?

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 EVIDENCE

7.3 IMPEACHMENT ON COLLATERAL MATTER NOTES

Where a witness makes a statement not directly relevant
to the issue in the case, the rule against impeachment on a
collateral matter prohibits a party from proving the statement
untrue either by extrinsic evidence or by a prior inconsistent
statement.

7.4 IMPEACHMENT OF HEARSAY DECLARANT

The credibility of a hearsay declarant may be attacked (and
if attacked, may be supported) by evidence that would be
admissible if the declarant had testified as a witness. In
other words, because a hearsay declarant functions as a
sort of witness—the jury has heard their statement, even if
they aren’t present at trial—the hearsay declarant can be
impeached by any of the impeachment methods that we have
discussed. In particular, the hearsay declarant need not be
given the opportunity to explain or deny a prior inconsistent
statement. In addition, the party against whom the out-of-
court statement was offered may call the hearsay declarant as
a witness and cross-examine them about the statement.

For purposes of this rule, a “hearsay declarant” means a

person whose out-of-court statement has been admitted into
evidence: (1) under an exception to the hearsay rule, or (2) as
a vicarious statement of an opposing party (see 8.2.2.c., infra).

HYPO 7L
Shooter is on trial for murder of Victim. In hospital bed,
Victim told the nurse, “I’m feeling pretty good considering
Billy Ray tried to kill me.” The next day, Victim told a visitor,
“I know I’m about to die. Shooter’s the one who shot me.”
Prosecution introduces Victim’s statement to the visitor
as a dying declaration. Should Shooter be allowed to
introduce Victim’s statement to the nurse?

7.5 REHABILITATION
A witness who has been impeached may be rehabilitated by
the following methods:

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NOTES 7.5.1 Explanation on Redirect

The witness on redirect may explain or clarify facts brought
out on cross-examination.

7.5.2 Good Character for Truthfulness

When the witness’s general bad character for truthfulness
was attacked (by reputation or opinion testimony, prior
convictions, or prior acts of misconduct), other witnesses may
be called to give reputation or opinion testimony about the
impeached witness’s good character for truthfulness. Note
that the character witness cannot testify about specific acts
of truthful conduct by the impeached witness; only reputation
and opinion are allowed.

Remember that rehabilitation must meet the at-

CMR tack. For example, if a witness was impeached
Exam Tip
with their bad eyesight, it would not make sense
to rehabilitate them with evidence of their good character
for truthfulness. This method of rehabilitation is available
only where the witness’s general bad character for truthful-
ness has been attacked.

7.5.3 Prior Consistent Statement

There are 2 situations in which a party can rehabilitate a
witness by introducing the witness’s prior consistent statement.

• First, if the testimony of the witness has been attacked by

an express or implied charge that the witness is lying or
exaggerating because of some motive, a previous con-
sistent statement made by the witness before the onset
of the alleged motive is admissible to rebut this evidence.

• Second, if the witness’s testimony is impeached on some

different ground (other than a general attack on the wit-
ness’s character for truthfulness), such as an inconsisten-
cy or a charge of faulty memory, counsel may introduce
a prior consistent statement made by the witness if, under
the circumstances, it has a tendency to rehabilitate the
witness’s credibility.

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 EVIDENCE
A prior consistent statement that is admissible to rehabil-
itate a witness’s credibility also is admissible as substan-
NOTES
tive evidence of the truth of its contents (see the Hearsay
module).

HYPO 7M
Tom v. Nicole. On July 1, pedestrian Tom was struck by
a car driven by Nicole. Penelope, a stranger to Tom and
Nicole at the time, witnessed the accident and told the
police on July 1 that Tom looked sober as he crossed the
street. At trial, 6 months later, Penelope testifies for Tom,
“He looked sober as he crossed the street.”
(1) On cross-examination, Penelope is asked whether she
was having memory problems due to a medication she
was taking, to which she answers “No.” On re-direct, may
Penelope properly testify that she told the police on July 1
that Tom had looked sober?
(2) Assume that on the cross-examination of Penelope,
she is asked, “Isn’t it a fact that after this accident, you and
Tom became close friends and are now living together as
lovers?” to which she answers, “Yes.” On re-direct, may
Penelope properly testify that she told the police on July 1
that Tom had looked sober?

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EVIDENCE

NOTES 8 HEARSAY
8.1 BASIC RULE AND DEFINITION
8.1.1 Statement of the Rule
Hearsay is a statement, other than one made by the
declarant while testifying at the current trial or hearing,
offered in evidence to prove the truth of the matter asserted.
(This definition will be broken down in more depth below.)

If a statement is hearsay, and no exception to the rule

applies, the evidence must be excluded upon appropriate
objection.

The rationale for excluding hearsay is that the adverse party

was denied the opportunity to cross-examine the declarant
at the time the statement was made. The hearsay rule
prefers that declarants make their assertions in court from
the witness stand, where they are under oath and subject to
cross-examination, and where the jury can see them making
their statements.

a. Hearsay Within Hearsay

An out-of-court statement that incorporates other hearsay
within it (“hearsay within hearsay” or “double hearsay”) is
admissible only if both the outer hearsay statement and
the inner hearsay statement fall within an exception to the
hearsay rule.

When checking for multiple hearsay, look for an out-of-

court declarant who repeats or transcribes another person’s
statement.

EXAMPLES OF HEARSAY WITHIN HEARSAY

1) Witness testifies, “After the accident, John told me that Mary said
she was fine.” (John and Mary are the two hearsay declarants.)
2) Plaintiff offers a police officer’s accident report that contains
the following notation: “Eyewitness reports that the truck driver
was weaving between lanes before impact.” (The police officer
and Eyewitness are the two hearsay declarants.)

66
 EVIDENCE

8.1.2 Elements of Definition NOTES

a. “Statement”
For purposes of the hearsay rule, a “statement” is a person’s:
(1) oral or written assertion, or (2) nonverbal conduct intended
as an assertion (like a nod of the head).

z Nonhuman Declarations
There is no such thing as animal or machine hearsay;
there must be an out-of-court statement by a person.
Thus, testimony about what a radar gun “said” or what
a drug-sniffing dog did is not hearsay (but is still subject
to other rules of evidence, so it must be relevant and
authenticated to be admitted).

b. Not Made at Current Trial or Hearing

A common shorthand definition of hearsay is “an out-of-court
statement offered to prove the truth of the matter asserted.”
But keep in mind that a hearsay statement can, in fact, be
made inside a courtroom (at a prior trial, for example). The
term “out-of-court” means that the statement was not made
by the declarant at the current trial or hearing.

c. “Offered to Prove the Truth of the Matter Asserted”

The final component of the hearsay definition tends to cause the
most angst and confusion. Some out-of-court statements may
look like hearsay at first glance, but are not hearsay because
they are not being offered for the truth of the matter asserted
in the statement. For example, a statement might be relevant to
the case merely because it was spoken or written. If offered for
a non-truth purpose, it doesn’t matter that the declarant wasn’t
cross-examined when they made the statement.

HYPO 8A
Action by the estate of Percy against Damien seeking
damages for the pain and suffering Percy experienced in
an auto accident caused by Damien. Damien denies liability
and also asserts that Percy died instantly in the accident.
Witness on the stand proposes to testify that shortly after
the accident, Percy said, “Damien’s car ran the red light.”
(1) Hearsay if offered to prove who ran the red light?

67
EVIDENCE
(2) Hearsay if offered to prove that Percy was alive
NOTES following the accident?

z Common Non-Truth Purposes

The following statements are not hearsay (also called
“nonhearsay”) because they are not being offered for
the truth of the matter asserted.
• Verbal acts or legally operative facts (such as words
of contract or defamatory words)

HYPO 8B
Michael sued David for breach of an oral contract. Witness
takes the stand and proposes to testify as follows: “I heard
David say to Michael: ‘I accept your offer to sell your paper
company.’” Hearsay?

• Statements offered to show their effect on the listen-

er or reader (for example, to prove notice in a negli-
gence case)

HYPO 8C
Plaintiff v. Supermarket. Plaintiff alleges she slipped and
fell on a broken jar of salsa in aisle 3 and that Supermarket
had prior notice of the dangerous condition. Plaintiff’s
witness takes the stand and proposes to testify: “Several
minutes before Plaintiff entered aisle 3, I heard another
shopper tell Supermarket manager, ‘There’s a broken jar
of salsa on the floor in aisle 3.’” Hearsay?

HYPO 8D
Sybil is charged with the murder of her husband, Basil.
To prove motive, the prosecutor seeks to introduce an
anonymous note to Sybil that was found in her possession
at the time of her arrest. The note stated, “Basil is having
an affair with Polly.” Hearsay?

68
 EVIDENCE
• Statements offered as circumstantial evidence of
declarant’s state of mind (for example, when a party
NOTES
is trying to prove someone’s insanity or knowledge)

HYPO 8E
Homer is prosecuted for murder. Defense: Insanity. Witness
for Homer proposes to testify: “Two days before the killing,
Homer said, ‘I am Elvis Presley. It’s good to be back.’”
Hearsay?

Do not confuse statements offered as circumstan-

CMR tial evidence of declarant’s state of mind, which
Exam Tip
are almost always offered as evidence of insanity
or knowledge, with statements that reflect directly on
declarant’s state of mind (for example, “I feel sad” or “I’m
going on a trip tomorrow”), which are usually offered to
establish emotion or intent. The former is not hearsay, while
the latter is hearsay subject to a specific exception that you
will learn about later in this module.

In deciding whether evidence is hearsay, ask your-

CMR self whether we are relying on the declarant’s
Exam Tip
credibility; in other words, does it matter whether
the declarant is telling the truth? If not, the evidence isn’t
hearsay.

8.2 STATEMENTS THAT ARE NONHEARSAY

UNDER THE FEDERAL RULES
There are certain statements that meet the basic definition of
hearsay (that is, out-of-court statement offered for the truth of
the matter asserted), but have been specifically designated
as “not hearsay” under the Federal Rules. These statements
are often referred to as hearsay “exclusions” or “exemp-
tions,” because they have been excluded from the defini-
tion of hearsay. Because there is no hearsay concern, these
statements are admissible as substantive evidence (unless
excluded by some different evidence rule).

69
EVIDENCE

HEARSAY

Is the evidence a “statement” for purposes of the Admissible. Nonassertive

No
hearsay rule; i.e., is it an oral or written statement conduct is not hearsay.
or conduct intended to be a substitute for words?

Admissible. Since not offered

Yes for their truth, the following are
not hearsay:
Is the statement offered to prove the truth of the - Verbal acts and legally
matter asserted? No operative facts (e.g., words of
contract or defamation).
-Statements offered to show effect
on listener or reader
Yes (e.g., notice or knowledge).
-Statements offered to show what
declarant believed to be true.

Is the statement a prior inconsistent statement Yes

given by the declarant under penalty of perjury? Admissible nonhearsay

No

Is the statement a prior consistent statement (i)

offered to rebut a charge that the witness is lying or
exaggerating because of some motive or (ii) offered Yes Admissible nonhearsay
to rehabilitate a witness who has been impeached
on some other ground (other than a general attack
on the witness’s character for truthfulness)?

No

Is the statement one of identification of a person Yes Admissible nonhearsay

as someone the witness perceived earlier?

No

Was the statement made or adopted by a party

to the action, or by: (i) a spokesperson authorized
to speak on her behalf; (ii) her agent concerning a
matter within the scope of the agency; (iii) her Yes Admissible nonhearsay
partner within the scope of partnership business;
(iv) her co-conspirator in furtherance of the
conspiracy; or (v) her privy in title (state courts)?

No

Hearsay. Inadmissible unless one of the hearsay

exceptions applies (see Exceptions charts). CMR Chart

70
 EVIDENCE

CMR
Don’t get tripped up by terminology; the terms “not NOTES
Exam Tip
hearsay” and “nonhearsay” mean the same thing. A
statement can be nonhearsay either because (1) it
doesn’t fall within the basic definition of hearsay (for example,
it’s not being offered for the truth of the matter asserted), or
(2) it falls within one of these special hearsay exclusions.

8.2.1 Prior Statements of Testifying Witnesses

As a general rule, a witness’s own prior out-of-court statement
is hearsay and is inadmissible unless an exception applies.

HYPO 8F
Prosecution of D for robbery. D takes the stand in his own
defense and testifies: “(1) I didn’t do it. (2) And I told the
cops when they arrested me that I didn’t do it.”
Should (1) and (2) be excluded as hearsay?

However, under the Federal Rules, a prior statement by a

testifying witness who is subject to cross-examination is
not hearsay if:

• The prior statement is one of identification of a person as

someone the witness perceived earlier (even if the wit-
ness cannot remember making the identification);
• The prior statement is inconsistent with the declarant’s
in-court testimony and was given under oath at a prior
proceeding; or
• The prior statement is consistent with the declarant’s in-
court testimony and is (1) offered to rebut a charge that the
witness is lying or exaggerating because of some motive
(and the statement was made before any motive to lie or
exaggerate arose), or (2) offered to rehabilitate a witness
whose credibility has been impeached on some other
ground (other than a general attack on the witness’s char-
acter for truthfulness), such as an inconsistency or charge
of faulty memory. (See the rehabilitation discussion in the
Impeachment module for further discussion.)

71
EVIDENCE

NOTES Remember that these 3 hearsay exclusions apply

CMR to statements of testifying witnesses only. Don’t be
Exam Tip
fooled by an out-of-court “statement of identifica-
tion” made by a nontestifying declarant. Such a statement
will be inadmissible unless it falls within a hearsay exception.

8.2.2 Statements by or Attributable to Opposing

Party
An opposing party’s statement (that is, a statement made by
or attributable to a party and offered against that party) is not
hearsay under the Federal Rules. These statements are tradi-
tionally called “admissions of a party-opponent,” but this is
misleading because the declarant need not “admit” anything.
To qualify as an opposing party’s statement, the statement
need not have been against the declarant’s interest when
made, and may even be in the form of an opinion. Personal
knowledge is not required; the statement may be predicated
on hearsay.

HYPO 8G
X is charged with income tax evasion for the year 2019.
Prosecutor wants to prove X’s income during 2019, and
offers into evidence a loan application X submitted to a
bank in that year. X objects on the ground that the loan
application, which is filled with inflated numbers, was self-
serving and unreliable. Result?

HYPO 8H
Ma v. Life Insurance Co. for non-payment of policy
proceeds on the life of Pa. Defense: Suicide. Defendant
offers a letter by Ma to her friend in which she wrote,
“When I came home from shopping I found Pa dead on the
floor with his revolver nearby. I didn’t see what happened,
but this was no accident. Pa did himself in.” Admissible
despite Ma’s lack of personal knowledge?

The following types of opposing party statements merit

special attention.

72
 EVIDENCE

a. Judicial and Extrajudicial Statements NOTES

A party’s formal judicial statements (in pleadings, stipulations,
etc.) are conclusive and cannot be contradicted during trial. A
party’s informal judicial statements made during testimony and
extrajudicial (out-of-court) statements are not conclusive and
can be explained. A party’s formal judicial statement in one
case can be admitted against them as an extrajudicial state-
ment in another case. For example, if a defendant pleads guilty
to a traffic charge relating to a car accident, that plea can be
admitted against them as an opposing party’s statement in a
subsequent civil case arising out of the same accident.

b. Adoptive Statements
Where a party expressly or impliedly adopts or acquiesces in
the statement of another, the party’s acquiescence may be
admissible against them.
z Silence
If a party remains silent in the face of an accusatory
statement, their silence may be considered an implied
acquiescence to the truth of that statement if the
following requirements are met:

• The party heard and understood the statement;

• The party was physically and mentally capable of de-
nying the statement; and
• A reasonable person would have denied the accusation
Note, however, that silence in the face of accusations by
police in a criminal case is almost never considered an
admission of a crime.
c. Vicarious Statements
Certain statements by another person are admissible against
a party because of the relationship between them. 

z Co-Parties—Insufficient Relationship
Statements of a party are not receivable against their
co-parties merely because they happen to be joined as
parties.

73
EVIDENCE

z Authorized Spokesperson
NOTES
The statement of a person authorized by a party to
speak on its behalf (such as a statement by company’s
press agent) can be admitted against the party.

z Agents and Employees

A statement by an agent or employee is admissible
against the principal if the statement: (1) concerned any
matter within the scope of their agency or employment,
and (2) was made during the existence of the agency or
employment relationship.

Make sure that both of these requirements are

CMR met. If an employee’s statement concerned a topic
Exam Tip
outside the scope of their position, or if they made
the statement after their employment was terminated, it
won’t qualify as a vicarious statement of the employer.

HYPO 8I
Charlie the truck driver smashed into Pam’s house
while on a run for Acme Trucking, his employer. Charlie
descended from the cab and calmly told Pam, “Sorry about
wrecking your home. I guess I took my eyes off the road.
I was reaching down to get a beer and a joint.” In Pam v.
Acme, is Charlie’s statement admissible against Acme?

HYPO 8J
Betty v. Acme Trucking for sex discrimination in failing
to hire her. She offers the statement of Charlie, an Acme
truck driver, who told her over drinks one night, “I know
the Acme personnel office has a policy against hiring
women no matter how qualified they are.” Charlie’s
statement is inadmissible because:
(1) Charlie was not on the job when he was speaking to
Betty.
(2) Charlie’s statement did not concern a matter within the
scope of his employment.

74
 EVIDENCE

z Partners NOTES
After a partnership is shown to exist, a statement of
one partner relating to matters within the scope of the
partnership business is binding upon their co-partners.

z Co-Conspirators
Statements of one conspirator, made to a third party in
furtherance of a conspiracy to commit a crime or civil
wrong at a time when the declarant was participating in
the conspiracy, are admissible against co-conspirators.
The court must determine the existence of a conspiracy,
and the party’s participation in it, by a preponderance of
the evidence standard (meaning, “more probably true
than not true”; see Preliminary Determinations, below, for
further discussion).

z Privies in Title and Joint Tenants—State Courts Only

In most state courts, statements of each joint owner
are admissible against the other, and statements of a
former owner of real property made at the time they
held title are admissible against those claiming under
them (grantees, heirs, etc.). These statements do not
qualify as opposing party statements under the Federal
Rules, but may be admissible under one of the hearsay
exceptions (for example, the statement against interest
exception).

z Preliminary Determinations
Before admitting an out-of-court statement as a vicarious
statement of an opposing party, the court must make a
preliminary determination of the declarant’s relationship
with the party against whom the statement is offered. In
other words, the court must first determine whether the
declarant was authorized to speak for the party, whether
the declarant was the party’s agent/employee, or
whether the declarant and party were co-conspirators.
In making such a determination, the court must consider
the contents of the statement, but the statement alone
is not sufficient to establish the required relationship;
there must be some independent evidence.

75
EVIDENCE

NOTES 8.3 HEARSAY EXCEPTIONS—DECLARANT

UNAVAILABLE
Now we have come to the hearsay “exceptions.” These state-
ments are hearsay, but are nevertheless admissible because
they are considered to be especially necessary or reliable.

There are 5 exceptions to the hearsay rule that condition

admissibility of the hearsay statement on the present unavail-
ability of the declarant to testify.

8.3.1 Grounds for Unavailability

A declarant is unavailable if they:

• Are unable to testify due to death or physical or mental

illness;
• Are exempt from testifying because of privilege;
• Refuse to testify concerning the statement despite a
court order;
• Testify that they do not remember the subject matter; or
• Are absent (beyond the reach of the court’s subpoena),
and the proponent is unable to procure their attendance
or testimony by process or other reasonable means. Note
that a declarant who is able to give deposition testimony
in lieu of attending trial is considered to be an available
witness—except with respect to (1) the former testimony
exception and (2) the forfeiture by wrongdoing exception
(both discussed below).

8.3.2 Former Testimony

The testimony of a now-unavailable witness is admissible if:

• The testimony was given under oath at a trial, hearing, or

deposition, in the same case or in a different case; and

• The party against whom the testimony is now being

offered—or, in a civil case, the party’s predecessor in
interest—had an opportunity and similar motive to de-
velop the declarant’s testimony at the prior proceeding
76
 EVIDENCE
by direct, cross-, or redirect examination. “Predecessor
in interest” refers to a person in a privity relationship with
NOTES
the party (examples would include grantor-grantee, testa-
tor-executor, or joint tenants).

On a practical level, the “opportunity and similar

CMR motive” requirement means that the party against
Exam Tip
whom the testimony is offered (or, in a civil case,
their predecessor in interest) must have been a party in the
former action, and the former action must have involved the
same subject matter (but the causes of action need not be
identical).

HYPO 8K
Bus accident. Passengers A and B were seriously injured.
A sued Bus Co., alleging negligence by the bus driver.
At trial, Witness testified for A that the bus driver was
intoxicated at the time of the accident. Thereafter, Witness
died. B now sues Bus Co. and seeks to admit a transcript
of Witness’s former testimony. Result?

HYPO 8L
Same bus accident. At a grand jury proceeding, Witness
testified that the bus driver was intoxicated at the time of
the accident. Thereafter, Witness died. The bus driver is
prosecuted for DWI. Prosecutor seeks to admit a transcript
of Witness’s grand jury testimony. Result?

Because grand jury proceedings do not provide

CMR the accused with an opportunity for cross-exam-
Exam Tip
ination, the grand jury testimony of an unavailable
declarant is not admissible against a defendant under the
former testimony exception to the hearsay rule. Be careful
not to confuse this with a prior inconsistent statement given
under oath by a now-testifying witness (one of the hearsay
exclusions discussed in the prior section). Grand jury testi-
mony is admissible in that case, both as impeachment and
substantive evidence.

77
EVIDENCE

NOTES 8.3.3 Statements Against Interest

A statement of a person, now unavailable as a witness,
may be admissible if it was against that person’s pecuniary
(money), proprietary (property), or penal (criminal) interest
when made, such that a reasonable person in the declarant’s
position would have made it only if they believed it to be true.
The declarant must also have had personal knowledge of
the facts, and must have been aware that the statement was
against their interest when they made it.

STATEMENTS BY AN OPPOSING PARTY VS.

STATEMENTS AGAINST INTEREST

Statements by an Statements Against Interest

Opposing Party
Statement need not have been Statement must have been against
against interest when made. interest when made.

Declarant need not have personal Declarant must have personal

knowledge of facts. knowledge of facts.

Declarant need not be unavailable. Declarant must be unavailable.

Declarant must be a party. Declarant need not be a party.

CMR Chart

HYPO 8M
Plaintiff v. Acme Trucking, based on Charlie the truck
driver’s negligent driving. Charlie was fired immediately
after the accident. Two weeks later, Charlie told Plaintiff’s
insurance adjuster that he had been drunk while driving.
At trial, Charlie refused to testify on the ground of self-
incrimination. The insurance adjuster may properly testify

78
 EVIDENCE
to Charlie’s statement as evidence against Acme because
the statement is:
NOTES

(1) A vicarious admission of an opposing party.

(2) A statement against interest.

a. Limitation on Statements Against Penal Interest

In criminal cases, statements against penal interest
(meaning, statements that would subject the declarant to
criminal liability) must be corroborated.

HYPO 8N
Prosecution of Doppler for arson of Town Hall. Doppler
calls Waldo to testify that while sitting in a bar, Waldo
heard Stranger say, “I’m the guy who torched Town Hall,
but I’m glad they think it’s Doppler. Just to be safe, I’m
leaving town tomorrow.” Doppler’s attorney demonstrates
that Stranger has not been located despite a diligent
search. Admissible as a statement against interest?

HYPO 8O
Elementary school principal sues Newspaper for libel for
article accusing him of having sex with PTA mothers. To
prove defense of truth, Newspaper calls Reporter to testify
that Mothers A, B, and C (all of whom are alive and well
and live nearby) told him they had sex with the principal.
Admissible as a statement against interest?

b. “Statement” Means Single Remark

If a person makes a declaration containing statements that
are against their interest (for example, “I sold the drugs”) and
statements that are not (for example, “X runs the drug ring”),
the exception covers only those remarks that inculpate the
declarant, not the entire extended declaration.

8.3.4 Dying Declarations—Statements Under Belief

of Impending Death
In a homicide prosecution or in any civil case, a statement
made by a now-unavailable declarant is admissible if:

79
EVIDENCE
• The declarant believed their death was imminent (they
NOTES need not actually die); and

• The statement concerned the cause or circumstances of

what the declarant believed to be their impending death.
Note that the statement must be based on the declarant’s
perceptions and firsthand knowledge of what happened
(meaning, an unsupported opinion or speculation will not
qualify).

The bar exam may require you to distinguish the

CMR Federal Rule on dying declarations from the tradi-
Exam Tip
tional rule. Beware of answer choices reflecting the
traditional rule, which: (1) required that the declarant ultimate-
ly die of the injury, and (2) could not be used in civil cases.

HYPO 8P
Prosecution of Dagger Dan for the murder of Victor Victim.
A passerby found Victor lying in the gutter in a pool of blood
with a knife in his stomach. Victor told the passerby, “It’s not
looking too good for me. Dagger Dan did it, and I’m going to
get him for this.” Victor died an hour later. May the passerby
testify to Victor’s statement as a dying declaration?

HYPO 8Q
Prosecution of Dillinger for bank robbery. At the scene, a
bank officer, Ness, spoke with wounded Teller Tim, who
gasped, “I’m a dead man. Get me a priest. Dillinger shot
me as he made his getaway.” Tim then lapsed into a coma
from which he has not emerged. May Ness testify to Tim’s
statement as a dying declaration?

Remember, although the dying declaration excep-

CMR tion may be used in any civil case, its use in crimi-
Exam Tip
nal cases is restricted to homicide prosecutions
(such as for murder or manslaughter). There are no dying
declarations in prosecutions for attempted homicide, or for
other crimes like robbery or kidnapping.

80
 EVIDENCE

HYPO 8R NOTES
Same event, except civil action against Dillinger for Tim’s
personal injury damages. Tim is still in a coma. May Ness
testify to Tim’s statement as a dying declaration?

8.3.5 Statements of Personal or Family History

This exception isn’t as frequently tested as the exceptions
above, but you should still be aware of it. Statements by a
now-unavailable declarant concerning births, marriages,
divorces, relationship, genealogical status, etc., are admis-
sible provided that:

• The declarant is a member of the family in question or

intimately associated with it; and

• The statements are based on the declarant’s person-

al knowledge of the facts or their knowledge of family
reputation

8.3.6 Statements Offered Against Party Procuring

Declarant’s Unavailability
The statement of a person (now unavailable as a witness) is
admissible when offered against a party who has engaged
or acquiesced in wrongdoing that intentionally procured the
declarant’s unavailability. Remember, the statement meets
this exception only if the party’s motivation was to prevent
the declarant from testifying. If a party killed a declarant
(or otherwise prevented them from testifying) for a different
reason, the declarant’s statement would not fall within this
exception.

81
EVIDENCE

HEARSAY EXCEPTIONS—
UNAVAILABILITY REQUIRED

Statement made under oath at same or

at other proceeding at which the party
Former Testimony against whom it is offered had motive
and opportunity to develop testimony.

Statement against declarant’s

Statement Against Interest pecuniary, proprietary, or penal
interest when made.

Statement made while declarant

Dying Declaration believed death was imminent,
concerning the cause or circumstances
of the impending death.

Statement of personal or family history

Statement of Personal or (e.g., birth, death, marriage) made by
Family History family member or one intimately
associated with the family.

Statement of unavailable declarant

Statement Offered Against Party
offered against party who intentionally
Procuring Declarant’s Unavailability
procured declarant’s unavailability.

CMR Chart

NOTES 8.4 HEARSAY EXCEPTIONS—DECLARANT’S

AVAILABILITY IMMATERIAL
The following exceptions to the hearsay rule do not require
that the declarant be unavailable. These statements are
considered sufficiently reliable to be admitted into evidence.

8.4.1 Excited Utterances

An out-of-court statement relating to a startling event, made

82
 EVIDENCE
while under the stress of the excitement from the event
(meaning, before the declarant had time to reflect upon it), is
NOTES
admissible. The rationale for this exception is that excitement
suspends a declarant’s capacity to fabricate.

HYPO 8S
Ernie observes a horrific head-on auto collision and
excitedly tells a cop, who arrives 10 minutes later, “Oh my
God, Officer! Both of those cars were going 80 miles an
hour!” May the cop properly testify to Ernie’s statement in
subsequent litigation arising out of the accident?

Sometimes a “failed” dying declaration may “suc-

CMR ceed” as an excited utterance (for example, where
Exam Tip
the declarant is available or had some hope of
survival; see 8.3.4, supra).

8.4.2 Present Sense Impressions

A present sense impression is a statement that describes or
explains an event or condition, and is made while or immedi-
ately after the declarant perceives the event or condition.
The rationale for this is exception is that the declarant has no
time to fabricate their statement.

HYPO 8T
Pedestrian alleges that Dora is the hit-and-run driver
who struck him. Pedestrian testifies, “I saw a silver Acura
speeding away. A couple of seconds later, some unknown
bystander told me he saw the Acura and its license plate
number was ‘007.’” Admissible?

The excited utterance and present sense impres-

CMR sion exceptions sometimes overlap. If a state-
Exam Tip
ment in an essay fact pattern appears to meet
the requirements of both exceptions, go ahead and ana-
lyze the statement under both of them—you don’t need to
pick just one.

83
EVIDENCE

EXCITED UTTERANCES VS.

PRESENT SENSE IMPRESSIONS

Excited Utterances Present Sense Impressions

Statement must relate to a Statement must describe or explain
startling event. an event or condition; the event or
condition need not be startling.

Statement must be made while still Statement must be made while

under the stress of excitement from or immediately after perceiving
the event (depends on circumstances). the event or condition
(strict timing requirement).

CMR Chart

NOTES 8.4.3 Present State of Mind

A statement of the declarant’s then-existing (present) state
of mind (including their motive, intent, or plan) or their
emotional, sensory, or physical condition is admissible. The
rationale for this exception is that these are contempora-
neous statements and the declarant has unique knowledge
of their own condition. However, except as to certain facts
concerning the declarant’s will, a statement of memory or
belief is not admissible to prove the truth of the fact remem-
bered or believed.

HYPO 8U
Probate of Wanda’s Will, in which she left all her money
to the local pet cemetery. Wanda’s family challenges
the will on the ground that Wanda was insane when she
executed it. Pet cemetery offers testimony that a few days
before execution of the will, Wanda said to her friend, “I
do not love my family anymore.” Admissible over hearsay
objection?

84
 EVIDENCE

a. Includes Statements of Intent NOTES

As stated above, “state of mind” includes statements about
the declarant’s intent to do something in the future, including
the intent to engage in conduct with another person.

HYPO 8V
Susan has died and her family sues Life Insurance Co. for
nonpayment of the policy proceeds. Defense: Suicide. Life
Insurance Co. seeks to introduce a note found in Susan’s
apartment (in Susan’s handwriting) in which she said, “I’m
going to end it all next week.” Admissible?

HYPO 8W
Prosecution of Raymond for murder of Vic. Before going
out Monday night, Vic told his wife, “I’m meeting Raymond
tonight at the bowling alley.” Vic’s dead body was found
Tuesday morning outside the bowling alley. Is Vic’s
statement admissible?

b. Includes Statement of Physical Condition

As stated above, this exception covers a declarant’s state-
ment—to anyone—about their current physical condition.

HYPO 8X
Plaintiff, whose arm was broken in an accident with
Defendant, sues for damages for pain and suffering.
Plaintiff may, of course, testify about the pain she
experienced. But Plaintiff also calls Neighbor to testify, (1)
“I was with Plaintiff last July when she said, ‘I’m feeling a
lot of pain in my arm’ and again in December when she
said (2) ‘I sure did feel a lot of pain in my arm last July.’”
Admissible over hearsay objections?

8.4.4 Statements Made for Purposes of Medical

Diagnosis or Treatment
A statement that describes a person’s medical history, past
or present symptoms, or their inception or general cause is
admissible as an exception to the hearsay rule if it was made
for—and was reasonably pertinent to—medical diagnosis or

85
EVIDENCE
treatment. Usually a declarant will be describing their own
NOTES condition, but this is not required (for example, the declarant
might be seeking medical assistance for a family member).
Statements falling within this exception are usually made to
medical personnel, but this is not an absolute requirement.
The rationale for this exception is that people have a motive
to be honest and accurate when undergoing a medical
assessment.

If a declarant tells an emergency room physician, “I

CMR was stabbed with a kitchen knife; my roommate
Exam Tip
did it,” only the first portion of the statement is
pertinent to diagnosis or treatment. The second portion is
inadmissible. (Note, however, that many federal courts will
admit a statement in which a child abuse victim identifies
their abuser in the course of treatment.)

Note: As discussed above, there is a separate hearsay

exception for statements of present physical condition, and
this exception applies regardless of whether the declarant
is seeking medical help. The difference here is that the
“medical diagnosis or treatment” exception covers state-
ments of past condition (as well as present condition). So
when a declarant makes a statement of present physical
condition for the purpose of medical diagnosis or treatment,
it could technically be admitted under either exception.

HYPO 8Y
Plaintiff v. Defendant for pain-and-suffering damages
based on alleged accident at Defendant’s store. At trial,
Plaintiff calls one of her treating physicians to testify,
“When Plaintiff came to see me for treatment a year
after the accident, she said, (1) ‘The pain in my arm is
killing me. (2) I’ve been losing sleep at night for the past
6 months because of the pain in my arm. (3) This all
started when I fell down the stairway—(4) the one with no
treads at Defendant’s store.’” Admissible over hearsay
objections?

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 EVIDENCE

CMR
The statements in the above hypo would have NOTES
Exam Tip
been admissible even if the plaintiff was speaking
to a physician who was retained for the sole
purpose of testifying as an expert witness. Under the Feder-
al Rules, declarations of past physical condition made to a
doctor employed to testify are admissible under this hearsay
exception. Making a statement for the purpose of obtaining
a “medical diagnosis” includes a diagnosis for the purpose
of giving an expert opinion.

8.4.5 Records of a Regularly Conducted Activity—

Business Records
Any writing or record made as a memorandum of any
act, event, condition, opinion, or diagnosis is admissible
in evidence as proof of that occurrence if the following
elements are met. The rationale is that businesses are
motivated to keep accurate records.

a. Elements
z “Business”
“Business” includes every business, organization,
occupation, or calling, including nonprofit organizations.

z Entry Made in Regular Course of Business

To be admissible: (1) the record must have been made
in the regular course of business and (2) the business
must regularly keep such records (meaning, the entrant
must have had a duty to make the entry). Self-serving
accident reports prepared primarily for litigation are
usually inadmissible.

z Entry Made Near Time of Event

The entry must be made at or near the time of the event.

z Personal Knowledge
The business record must consist of matters within the
personal knowledge of the entrant, or within the knowl-
edge of someone with a duty to transmit such matters to
the entrant (generally, a co-worker).

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EVIDENCE

NOTES Business records often present a multiple hear-

CMR say problem. Watch for fact patterns involving
Exam Tip
police reports or other incident reports that
contain statements from bystanders (outsiders who aren’t
part of the organization), who generally are not under a
business duty to convey the information. Although the
report itself (the outer hearsay—the entrant’s assertion that
the bystanders made these statements) may qualify as a
business record, the bystanders’ statements within it (the
inner hearsay) do not, and will need to fall within some
independent hearsay exception or exclusion (for example,
statement by opposing party). On the other hand, if the
report merely contains the entrant’s own observations, or
statements of persons under a business duty to report the
information, the entire report may be admissible under the
business records exception.

HYPO 8Z
Personal injury action. Plaintiff offers hospital records,
which include statement of surgeon, “Surgery to repair
broken arm partly successful. Neurologist reports surgery
could not repair severed nerve.” Admissible?

HYPO 8AA
Same case. Plaintiff offers another part of hospital records,
which state “Patient admitted with broken arm. Patient
reports he was hit by car driven by someone with a
suspended license.” Admissible?

b. Required Foundation for Business Records

The authenticity of the record must be established by a
sponsoring witness, who can be a custodian of records or
any person in the business who is knowledgeable about the
business’s recordkeeping (it does not need to be the author
of the record in question). This can be accomplished by the
records custodian (1) testifying that the record meets the
elements of the business records exception, or (2) certifying
in writing that the record meets the elements of the business
records exception.

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 EVIDENCE

c. Business Records to Prove Nonoccurrence of Matter NOTES

A business record that meets the above requirements may
also be used to prove the nonoccurrence or nonexistence
of a matter if it was the regular practice of the business to
record all such matters.

d. Court May Exclude for Lack of Trustworthiness—

Burden on Opponent
Even if a business record meets all requirements, it still may
be excluded by the court if the opponent makes a showing
that the circumstances of the record indicate a lack of trust-
worthiness.

8.4.6 Official Records and Other Official Writings

a. Public Records and Reports
The following records of a public office or agency are
admissible:

• Records setting forth the activities of the office or agen-

cy (for example, payroll records);

• Recordings of matters observed pursuant to a duty im-

posed by law (for example, weather bureau records of
temperature), but not including police observations in
criminal cases; and

• In civil actions and against the government in criminal

cases—but not against the defendant in a criminal
case—records of factual findings resulting from an inves-
tigation authorized by law (for example, an FAA report on
the cause of a plane crash)

The writing must have been made by and within the scope
of the duty of the public employee, and it must have been
made at or near the time of the event. Note that as with
business records, an otherwise qualifying public record may
be excluded by the court if the opponent makes a showing
that the circumstances of the record indicate a lack of trust-
worthiness.

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EVIDENCE

NOTES As with business records, make sure to test the

CMR statements of outsiders (people who aren’t public
Exam Tip
employees) contained in the report to make sure
they are admissible under some independent hearsay
exception or exclusion. If not, those statements will be
excluded even if the rest of the record is admitted.

z Limitation on Law Enforcement Records as Public

Records and Business Records
As a general rule, police reports can be admitted
under the public records exception. Even the officer’s
opinions and factual (not legal) conclusions can be
admitted under this exception. However, public records
and reports generally are not admissible against the
defendant in a criminal case. This means that investi-
gative reports by the police, FBI, and other agencies are
inadmissible in this situation. Additionally, most courts
have held that these records can’t be admitted against a
criminal defendant under the business records exception
(in other words, the business records exception can’t be
used as a “back door” to get around this limitation in the
public records exception).

b. Records of Vital Statistics

Records of vital statistics are admissible if reported to a
public office in accordance with a legal duty.

c. Statement of Absence of Public Record

Evidence in the form of testimony or a certification from the
custodian of public records (or other qualified person) that
they have diligently searched and failed to find a record is
admissible to prove that the matter was not recorded, or
inferentially that the matter did not occur. Note, however,
that a criminal defendant has a right to confrontation and
may demand the presence of the person who prepared the
certification. Thus, in a criminal case, this type of evidence is
admissible in the form of a certification only if the prosecu-
tion notifies the defense at least 14 days before trial and the
defense does not object in writing within 7 days of receiving
the notice (unless the court sets a different timeline).

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 EVIDENCE

d. Judgments NOTES
A certified copy of a judgment is always admissible proof that
such judgment has been entered. The problem is to what
extent the facts adjudicated in the former proceeding can be
introduced to prove facts in the present case.
z Prior Criminal Conviction—Felony Conviction
Admissible
A judgment of a felony conviction is admissible in
criminal and civil actions as an exception to the hearsay
rule to prove any fact essential to the judgment. For
example, if a defendant was convicted of a felony
assault, the injured party could use the judgment of
conviction in a later civil lawsuit against the same defen-
dant to prove that the assault happened. In a criminal
case, however, the government may use the judgment
for this purpose only against the accused; against
others, it may be used only for impeachment purposes.
z Prior Criminal Acquittal—Excluded
This hearsay exception does not apply to records of
prior acquittals. This is because the evidentiary standard
is higher in a criminal case (proof beyond a reasonable
doubt), so an acquittal is not conclusive as to whether
the defendant would be found liable in a civil case.
z Judgment in Prior Civil Case—Generally Excluded
A civil judgment is inadmissible in a subsequent criminal
proceeding because of the different standards of proof.
A civil judgment is generally also inadmissible in subse-
quent civil proceedings, subject to certain statutory
exceptions—for example, under the Federal Rules, a
prior judgment may be admitted to prove matters of
personal or family history, or boundaries of land.

8.4.7 Recorded Recollection

As previously discussed, there is a hearsay exception for
recorded recollections. Recall that under this exception, if a
testifying witness’s memory cannot be revived, a party may
introduce a memorandum or other record that the witness
made or adopted at or near the time of the event. See the
Witnesses module for the required elements. Remember

91
EVIDENCE
that under this exception, the record can only be read into
NOTES evidence; it cannot be admitted as an exhibit unless offered
by an adverse party.
8.4.8 Learned Treatises
As discussed in the Witnesses module, statements contained
in a learned treatise are admissible as substantive proof if
(1) the treatise is established as reliable authority and (2) the
excerpt is relied upon by an expert during direct examination
or brought to an expert’s attention on cross-examination. If
admitted, such statements are read into evidence but are not
received as an exhibit. This is a unique feature that recorded
recollections (above) and learned treatises have in common.

Remember that learned treatises are admissible only

CMR if introduced in the context of expert testimony. In
Exam Tip
other words, if a party finds a learned treatise that
supports their case, they can’t offer it into evidence under this
exception unless there is an expert involved who either (1)
relies on the treatise or (2) is impeached with the treatise.

8.4.9 Ancient Documents

Under the Federal Rules, statements in any authenticated
document prepared before January 1, 1998, are admissible.

8.4.10 Documents Affecting Property Interests

A statement in a document affecting an interest in property
(such as a deed, will, etc.) is admissible if the statement is
relevant to the document’s purpose. However, the exception
will not apply if later dealings with the property are inconsis-
tent with the truth of the statement asserted or the intent of
the document.

8.4.11 Reputation
Reputation evidence is hearsay because it summarizes
various out-of-court statements by other people—but we
know from the Character Evidence module that such testi-
mony is routinely admitted. That is because there are several
hearsay exceptions that admit reputation evidence to prove:
(1) character; (2) personal or family history; (3) land bound-
aries; and (4) a community’s general history.

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 EVIDENCE

HEARSAY EXCEPTIONS—AVAILABILITY IMMATERIAL

Excited Utterance Statement made while under stress of excitement of startling event.

Present Sense Statement made concurrently with perception of event described.

Impression
Statement of then-existing state of mind, emotion, or sensation.
Present State
(Usually introduced to establish intent. Admissible when state of
of Mind
mind is a material issue or to show subsequent acts of declarant.)
Present Bodily Spontaneous declaration of physical symptoms.
Condition
Statement for Statement of past or present physical condition, or the cause of the
Medical Diagnosis condition, made for the purpose of diagnosis or treatment.
or Treatment

Recorded Record by witness who cannot now remember the facts,

Recollection made while the facts were fresh in her mind.
Record made in the regular course of business, consisting of
Business Records or matters within the personal knowledge of one with a business duty
Absence Thereof to transmit. Lack of such record may be used to show
nonoccurrence of event.

Public Records and Records and reports of public agencies regarding their activities,
Reports or Absence and records of births, deaths, marriages, etc. Absence of public
Thereof; Records of record is admissible to show nonexistence of matter.
Vital Statistics
A copy of a judgment of a prior felony conviction is admissible
Judgments to prove any fact essential to the judgment. In a criminal case,
it may be used for this purpose only against the accused.
Statements in authenticated documents prepared before
Ancient Documents January 1, 1998.

Documents Affecting Statements in a document affecting an interest in a property

Property Interests (e.g., deed, will).

Statements from authoritative works admitted if called to

Learned Treatises attention of expert witness and established as reliable authority.

Reputation evidence concerning a person’s character, a person’s

Reputation personal or family history, land boundaries, or a community’s
general history.

Statements of fact found in family Bibles, jewelry engravings,

Family Records
tombstones, etc.
Market reports and public compilations generally relied on by
Market Reports the public or persons of a particular occupation.

CMR Chart

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EVIDENCE

NOTES 8.4.12 Family Records

Statements of fact concerning personal or family history
contained in family Bibles, jewelry engravings, genealogies,
tombstone engravings, etc., are admissible.

8.4.13 Market Reports

Market reports and other published compilations are admis-
sible if generally used and relied upon by the public or by
persons in a particular occupation.

8.5 RESIDUAL “CATCH-ALL” EXCEPTION OF

FEDERAL RULES
For a hearsay statement that is not covered by a specific
exception to be admitted, the Federal Rules provide a
catch-all exception, which imposes the following conditions:
• The hearsay statement must possess sufficient guaran-
tees of trustworthiness. In making this determination, the
court must consider: (1) the totality of the circumstances in
which the statement was made, and (2) any evidence that
corroborates the statement.
• The statement must be strictly necessary (that is, more pro-
bative as to the fact for which it is offered than any other
evidence that the proponent can reasonably produce).
• The proponent must give reasonable notice to the adver-
sary as to their intent to offer the statement, including: (1)
the substance of the statement, and (2) the name of the
declarant. Such notice generally must be given in writing
in advance of the trial or hearing, but may be given in
any form during the trial or hearing if the court, for good
cause, excuses a lack of earlier notice.
8.6 CONSTITUTIONAL ISSUES
8.6.1 Hearsay and the Confrontation Clause
Under the Confrontation Clause, a hearsay statement will not
be admitted (even if it falls within a hearsay exception) where:
• The statement is being offered against the accused in a
criminal case (there is no confrontation concern in civil
cases);
94
 EVIDENCE
• The declarant is unavailable;
NOTES
• The statement was “testimonial” in nature; and
• The accused had no opportunity to cross-examine the
declarant’s testimonial statement prior to trial
Note, however, that the defendant forfeits their right of
confrontation if they committed a wrongful act that was
intended to keep the witness from testifying.
a. “Testimonial” Statement
“Testimonial” evidence includes sworn testimony (such as
at a grand jury, prior trial, or preliminary hearing). However,
it also includes statements to law enforcement (sworn and
unsworn) and certain documents, as discussed below.
z Statements Made to Law Enforcement
Whether a statement made in response to police interro-
gation is testimonial depends on its primary purpose.
— To Aid in Ongoing Emergency—Not Testimonial
If the primary purpose of police interrogation is to
enable the police to help in an ongoing emergency,
statements made in the course of the interrogation are
nontestimonial (for example, a 911 call during ongoing
crime). In determining whether an “ongoing emergency”
existed at the time of the interrogation, relevant factors
include: (1) the nature of the dispute (public vs. private);
(2) whether the perpetrator is still at large; (3) the scope
of the threat to the victim and to the public; and (4) the
type of weapon involved.

— To Provide Information for Later Prosecution—

Testimonial
When the primary purpose of the interrogation is to
establish or prove past events potentially relevant to a
later criminal prosecution, statements are testimonial (for
example, statements to police describing a crime after it
has concluded). On the other hand, it has been held that
statements by a young child abuse victim to a school
teacher about the abuse are not testimonial because the
primary purpose of the conversation is protection of the
child, not prosecution of the perpetrator.
95
EVIDENCE

NOTES HYPO 8BB

911 call to the police, Caller states, “Dan Smith is here
attacking me—please help me!” Caller dies of unrelated
heart attack before Dan has opportunity to cross-examine
Caller. Prosecution seeks to introduce the statement.
Dan objects, hearsay, violates 6th Amendment right to
confront. Result?

HYPO 8CC
Same call as above, now Caller says, “He left, he’s driving
a blue Lexus, with the license plates, ‘DOG 4EVR.’” Caller
dies before trial, no chance to cross-examine. Dan objects,
hearsay, violates 6th Amendment right to confront. Result?

z Affidavits or Written Reports of Forensic Analysis

Affidavits, certificates, or other written reports that
summarize the findings of forensic analysis and have
the effect of accusing a targeted individual of criminal
conduct (such as fingerprint test results) are testimonial
and cannot be admitted unless the defendant previ-
ously had an opportunity to cross-examine the author
of the report. The testimony of the analyst’s supervisor
who was not involved in the testing is not sufficient to
admit the results. However, such reports may be used
for a nonhearsay purpose. Specifically, no confrontation
violation occurs if a forensic expert, while testifying as to
their independent analysis of data, makes only a general
reference to a nontestifying analyst’s report to demon-
strate a partial basis for their opinion.

8.6.2 Due Process Rights

Hearsay rules and other exclusionary rules of evidence
cannot be applied where such application would deprive
the accused of their right to a fair trial or deny their right to
compulsory process.

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 EVIDENCE

9 TESTIMONIAL PRIVILEGES NOTES

9.1 INTRODUCTION
Testimonial privileges permit a person to refuse to disclose,
and prohibit others from disclosing, certain confidential infor-
mation in judicial proceedings.

9.1.1 Exam Approach

On the bar exam, privileges are usually tested in a straightfor-
ward manner and you’ll apply the general rules covered in this
module. However, you may be asked to determine whether
federal or state privilege law should be applied in a particular
case in federal court. The answer to this question is as follows:
• In a federal court case arising under federal substantive
law (all civil cases arising under the Constitution or fed-
eral statutes, and all criminal cases), privileges are gov-
erned by federal common law.
• In a federal court case based on diversity jurisdiction,
where state substantive law applies to parties’ claims and
defenses (the Erie doctrine, covered in Federal Civil Proce-
dure), the federal court must apply privilege law of the state.
9.1.2 Federal Common Law Privileges
The Federal Rules have no specific privilege provisions; privi-
lege in federal courts is governed by common law principles
as interpreted by the courts. Federal courts currently recog-
nize the following major privileges:
• The attorney-client privilege;
• Spousal immunity;
• The privilege for confidential marital communications;
• The psychotherapist/social worker-client privilege;
• The clergy-penitent privilege; and
• Governmental privileges
Other privileges not listed above (such as physician-patient,
accountant-client, professional journalist) are only recognized
by certain states.
97
EVIDENCE

NOTES 9.1.3 General Considerations

a. Persons Who May Assert Privilege
A privilege is personal to the holder; meaning, it generally
can be asserted only by the holder. Sometimes the person
with whom the confidence was shared may assert the privi-
lege on the holder’s behalf.

b. Confidentiality
To be privileged, a communication must be shown or
presumed to have been made in confidence (meaning, not
intended to be disclosed to third parties).

c. Comment on Privilege Forbidden

Neither counsel for the parties nor the judge may comment
on someone’s claim of privilege.

d. Waiver
Any privilege is waived by: (1) failure to claim the privilege; (2)
voluntary disclosure of the privileged matter by the privilege
holder; or (3) a contractual provision waiving in advance the
right to claim a privilege.

A privilege is not waived when someone wrongful-

CMR ly discloses information without the privilege
Exam Tip
holder’s consent. Similarly, a waiver by one joint
holder does not affect the right of the other holder to assert
the privilege.

e. Eavesdroppers
A privilege based on confidential communications is not
destroyed because it was overheard by someone whose
presence is unknown to the parties. Under the modern
view, in the absence of negligence by the person claiming
privilege, even the eavesdropper would be prohibited from
testifying.

9.2 ATTORNEY-CLIENT PRIVILEGE

Communications between an attorney and client, made during
professional consultation, are privileged from disclosure.

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 EVIDENCE
The privilege applies to:
NOTES
• Confidential communications,
• Between attorney and client (or representatives of either),
• Made during professional legal consultation,
• Unless the privilege is waived or an exception is applicable
The important elements of this privilege are discussed in
more detail below.

9.2.1 Attorney-Client Relationship

An “attorney” is a member of the bar, or someone the client
reasonably believes to be a member of the bar. The “client”
must be seeking the professional services of the attorney
at the time of the communication. Disclosures made before
the attorney accepts or declines the case are covered by the
privilege.
a. Corporate Clients
Corporations are “clients” within the meaning of the privilege,
and statements made by corporate officials or employees to
an attorney are protected if the employees were authorized
or directed by the corporation to make such statements.

9.2.2 Confidential Communication

The privilege applies to communications only; the privi-
lege does not apply to underlying information, pre-existing
documents, or physical evidence. To be protected, the
communication must be confidential (meaning, not intended
to be disclosed to third parties); communications made in the
known presence and hearing of a stranger are not privileged.
However, representatives of the attorney or client may be
present without destroying the privilege.

HYPO 9A
Delbert is sued for his alleged negligence in an auto
accident. He tells his attorney what happened and gives
her the cell phone with which he was making a call at the
time of the accident. Before trial, Delbert is deposed by
plaintiff’s counsel:

99
EVIDENCE
(1) Must Delbert respond if asked, “What did you tell your
NOTES attorney about the accident?”
(2) Must Delbert respond if asked, “Describe what you
were doing at the time of the accident?”
(3) If served with a subpoena, must Delbert’s attorney
produce Delbert’s cell phone?

a. Communications Through Agents

Communications made to third persons (such as administra-
tive assistants, messengers, or accountants) are confidential
and covered by the privilege if necessary to transmit informa-
tion between the attorney and client.

A favorite exam topic involves communications

CMR between a client and a doctor during an examina-
Exam Tip
tion made at the attorney’s request (this is usually
done to help the attorney evaluate the extent of the client’s
injuries). Be careful—the physician-patient privilege (infra)
does not apply because no treatment is contemplated.
However, the attorney-client privilege will apply to these
communications between the client and a consulting doctor,
as long as the doctor is not called as a testifying expert.

b. Joint Client Rule—No Privilege Where Attorney Acts

for Both Parties
If 2 or more clients with a common interest consult the same
attorney, their communications with the attorney concerning
the common interest are privileged as to third parties.
But if the joint clients later have a dispute with each other
concerning the common interest and one client sues the
other, the privilege does not apply as between them.

9.2.3 Professional Legal Consultation

The primary purpose of the communication must be to obtain
or render legal services, not to give business advice or social
advice.

9.2.4 Client Holds Privilege

The client holds the privilege, and only they can waive it.
However, the attorney’s authority to claim the privilege on

100
 EVIDENCE
behalf of the client is presumed in the absence of contrary
evidence.
NOTES

9.2.5 Privilege Applies Indefinitely

The attorney-client privilege applies indefinitely. It continues
after the attorney-client relationship ends and even after
the client’s death. The client’s estate representative has the
power to waive the privilege after the client’s death.

9.2.6 Exceptions
There is no privilege:

• If the attorney’s services were sought to aid in the plan-

ning or commission of something the client should have
known was a crime or fraud

EXAMPLE
A client tells their attorney, “Help me disguise the bribes I made
so that they look like legitimate business expenses.”

• Where the client has put the legal services at issue in the
case

EXAMPLE
In tax fraud prosecution, the defendant defends on the ground
that she relied on advice of her attorney in reporting income.

• For a communication relevant to an issue of breach of

duty in a dispute between the attorney and client

EXAMPLE
An attorney sues their client for an unpaid fee, or a client sues
their attorney for legal malpractice.

• Regarding a communication relevant to an issue between

parties claiming through the same deceased client
9.2.7 Attorney’s Work Product
Although documents prepared by an attorney for their own
use in a case are not protected by the privilege, they are not
subject to discovery except in cases of necessity.
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EVIDENCE

NOTES 9.2.8 Limitations on Waiver of Attorney-Client

Privilege and Work Product Rule
Generally, a voluntary disclosure of privileged material
operates as a waiver of the attorney-client privilege or
work product protection only with respect to the disclosed
material. Undisclosed privileged material is subject to the
waiver only if (1) the waiver was intentional, (2) the disclosed
and undisclosed material concern the same subject matter,
and (3) the material should be considered together to avoid
unfairness. There is no waiver if the disclosure was inadver-
tent and the holder took reasonable steps to prevent disclo-
sure and rectify the error.

9.3 PHYSICIAN-PATIENT PRIVILEGE (STATE

PRIVILEGE ONLY)
9.3.1 Scope and Applicability
Most states have adopted a physician-patient privilege (but
recall that there is no such privilege under federal common
law). Confidential information acquired by a physician is privi-
leged if:

• There was a professional relationship between the physi-

cian and patient for the purposes of medical treatment;

• The information was acquired for the purpose of diagno-

sis or treatment; and

• The information was necessary for diagnosis or treatment

(nonmedical information—for example, details of who was
at fault in an accident—is not privileged)

The privilege belongs to the patient, and the patient may

decide to claim or waive it. If the patient is unavailable at the
time of trial, the physician may claim the privilege on their
behalf.
Note: There is also a broader privilege for psychothera-
pists (including physicians or other professionals certified to
diagnose or treat mental and emotional conditions), and this
privilege will be discussed in the next section.
102
 EVIDENCE

CMR
Remember that the state law of privilege is applied NOTES
Exam Tip
in diversity actions. If an exam question states that
the case is a diversity action, then the general phy-
sician-patient privilege will be available even though it is in
federal court, and you should apply the majority rules dis-
cussed here.

9.3.2 Main Exceptions

The physician-patient privilege does not apply (or is impliedly
waived) if:
• The patient puts their physical condition in issue (for
example, in a personal injury lawsuit);
• The physician’s assistance was sought to aid wrongdoing
(for example, to help the patient commit a crime or tort);
• The communication is relevant to an issue of breach of
duty in a dispute between the physician and patient
(such as a medical malpractice case);
• The patient agreed by contract (in an insurance policy, for
example) to waive the privilege; or
• It is a federal case applying the federal law of privilege
(because, again, federal courts do not recognize a gener-
al physician-patient privilege)

HYPO 9B
Doctor examines Patient’s lungs in hospital room while
Visitor is present. (a) Patient tells Doctor, “Do you suppose
my wheezing is due to the 4 packs of cigarettes I smoke
every day?” (b) After Visitor leaves, Patient says to Doctor,
“Know any good lawyers? I haven’t paid my income taxes
in 3 years.”
(1) In state court action in which the condition of Patient’s
lungs is an issue, could Doctor be compelled to disclose
statement (a)?
(2) In prosecution for income tax evasion, could Doctor be
compelled to disclose statement (b)?

103
EVIDENCE

NOTES 9.3.3 Criminal Proceedings

In some states, the privilege applies in both civil and criminal
cases. In a number of others, it cannot be invoked in criminal
cases generally. In still other states, the privilege is denied in
felony cases, and in a few states, it is denied only in homicide
cases.

Remember that when a psychiatrist is the doctor

CMR involved, the applicable privilege is the psycho-
Exam Tip
therapist-client privilege (discussed next), which is
more widely accepted in all proceedings than is the physi-
cian-patient privilege.

9.4 PSYCHOTHERAPIST/SOCIAL WORKER-

PATIENT PRIVILEGE
Federal courts recognize a privilege for confidential commu-
nications between a psychotherapist (psychiatrist or psychol-
ogist) or licensed social worker and their patient/client. In
most particulars, this privilege operates in the same manner
as the attorney-client privilege (supra); for example, the
patient/client must have intended their communication to be
confidential, and the purpose of the communication must
have been to facilitate professional services. Similar to the
privileges discussed above, there is no privilege where the
patient puts their mental condition at issue in the case (for
example, by filing a claim for emotional injuries or asserting
an insanity defense).

9.5 PRIVILEGES RELATING TO MARRIAGE

There are 2 distinct spousal privileges: the testimonial privi-
lege (commonly known as “spousal immunity”) and the privi-
lege for confidential marital communications.

9.5.1 Spousal Testimonial Privilege (Spousal

Immunity)—Criminal Cases Only
When the privilege of spousal immunity is invoked, a married
person whose spouse is a defendant in a criminal case may

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not be called as a witness by the prosecution. Moreover, a
married person may not be compelled to testify against the
NOTES
legal interests of their spouse in any criminal proceeding,
regardless of whether the spouse is the defendant. There
must be a valid marriage for the privilege to apply, and the
privilege lasts only during the marriage (even if the events at
issue took place before the marriage). In other words, what
matters is whether the spouses are married at the time of
trial. The purpose of the privilege is to protect the harmony
of an existing marriage.

a. Witness-Spouse Holds Privilege

In federal court, the privilege belongs to the witness-spouse.
This means that the witness-spouse cannot be compelled to
testify, but may choose to do so.

9.5.2 Privilege for Confidential Marital

Communications
In any civil or criminal case, confidential communications
between spouses during a valid marriage are privileged.
Either spouse can refuse to disclose the communication or
prevent any other person from doing so. For this privilege to
apply, the marital relationship must exist when the commu-
nication is made. Divorce will not terminate the privilege,
but communications after divorce are not privileged. The
rationale for the privilege is to encourage candor between
spouses.

a. Confidentiality
Private communications between spouses are generally
presumed to be confidential, but this is not always the
case. The communication must be made in reliance upon
the intimacy of the marital relationship. Threats or abusive
language are not privileged. Furthermore, communica-
tions made in the known presence of a third party are not
privileged (though statements may still be confidential and
privileged if made in the presence of young children living
in the home).

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EVIDENCE

PRIVILEGES RELATED TO MARRIAGE

Spousal Immunity Confidential Marital

Communications
One spouse cannot be compelled to Communications made in reliance
testify against the other spouse in any upon the intimacy of the marital
criminal proceeding. relationship are privileged. The
privilege applies in both civil and
criminal proceedings.

Only the witness-spouse may invoke Both spouses have the privilege not
spousal immunity (i.e., the party-spouse to disclose, and to prevent the other
cannot prevent the witness-spouse from disclosing, a confidential
from testifying). marital communication.

The privilege can be claimed only The privilege survives the marriage,
during marriage, but covers information but covers only statements made
learned before and during the marriage. during the marriage.

CMR Chart

NOTES 9.5.3 When Neither Marital Privilege Applies

Neither privilege applies in the following situations:
• Communications or acts in furtherance of a future joint
crime or fraud;
• In legal actions between the spouses; or
• In cases where a spouse is charged with a crime against
the testifying spouse or either spouse’s children

HYPO 9C
Niles is prosecuted for the murder of his brother Frazier.
Niles and Daphne are a married couple. Niles comes
home on the night of Frazier’s demise wearing a blood-
stained Armani topcoat, which Daphne observed.

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 EVIDENCE
(1) At trial, the prosecutor calls Daphne to the stand to
testify to her observations about Niles’s topcoat, but she
NOTES
refuses to testify. The prosecutor seeks to compel her
testimony. Result?
(2) Assume Daphne is willing to testify against Niles. In
addition to the topcoat observation, she seeks to testify
to the following: “Niles told me when he got home that he
stabbed Frazier.” Niles objects. Result?

HYPO 9D
Assume that Daphne divorces Niles before his case goes
to trial. The prosecutor calls her to the stand.
(1) Can Daphne be compelled to testify to her observations
about Niles’s topcoat?
(2) Can Niles prevent Daphne from disclosing his
admission to her about stabbing Frazier?

9.6 OTHER PRIVILEGES

You are most likely to see bar exam questions on the privi-
leges that were already covered: the attorney-client privilege,
the state physician-patient privilege (and when it applies in
federal court), the psychotherapist-patient privilege, and the
2 spousal privileges. However, there are a few other privi-
leges you should be aware of.

9.6.1 Clergy-Penitent Privilege

Federal courts and many states recognize a privilege for
statements made to a member of the clergy, the elements
of which are very similar to the attorney-client privilege. For
example, the privilege will apply only if the penitent made the
communication to the clergy member in the clergy member’s
capacity as a spiritual adviser.

9.6.2 Privilege Against Self-Incrimination

Under the 5th Amendment to the Constitution, a witness
cannot be compelled to testify against themselves. Any
witness compelled to appear in a civil or criminal proceeding
may refuse to give an answer that ties the witness to the

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EVIDENCE
commission of a crime. This privilege is covered in more
NOTES depth in your Criminal Procedure materials.

9.6.3 Governmental Privileges

Official information not otherwise open to the public may
be privileged. The government also holds a privilege that
protects the identity of an informer (someone who has
provided the government with details of a potential crime).
The privilege is waived if the informer’s identity is voluntarily
disclosed by a privilege holder (an appropriate government
representative).

9.6.4 Accountant-Client Privilege (State Only)

Many states recognize a privilege for statements made to an
accountant, and the elements of this privilege are very similar
to the attorney-client privilege. However, there is no federal
accountant-client privilege.

9.6.5 Professional Journalist Privilege (State Only)

There is no constitutional right for a professional journalist to
protect their source of information; only certain states recog-
nize such a privilege.

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 EVIDENCE

10 PROCEDURAL CONSIDER- NOTES

ATIONS
10.1 BURDENS OF PROOF
The burden of proof encompasses (1) the burden of
producing or going forward with the evidence and (2) the
burden of persuasion.

10.1.1 Burden of Production

The party who has the burden of pleading usually has the
burden of producing or going forward with evidence suffi-
cient to make out a prima facie case (that is, create a fact
question of the issue for the trier of fact). This is known as the
burden of production, or the burden of producing evidence,
or the burden of going forward with evidence. Once the party
has satisfied the burden of production, it is incumbent upon
the other side to come forward with evidence to rebut the
accepted evidence.

10.1.2 Burden of Persuasion (Proof)

After the parties have sustained their burden of production of
evidence, the question is whether the party with the burden
of persuasion has satisfied it. The burden of persuasion for
civil cases is usually by a preponderance of the evidence
(more probably true than not true), although some civil cases
(such as fraud or an oral contract to make a will) require
proof of clear and convincing evidence (high probability). The
burden of persuasion for criminal cases is beyond a reason-
able doubt.

10.2 PRELIMINARY QUESTIONS

In most cases, the existence of some preliminary or founda-
tional fact is an essential condition of admissibility. For
example, for a statement to be admitted under a hearsay
exception, it must be determined whether the requirements
of the exception are satisfied based on the surrounding
facts (for example, did the declarant actually believe their
death was imminent when they made their supposed dying
declaration?).
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EVIDENCE
The Federal Rules distinguish preliminary facts to be decided
NOTES by the jury from those to be decided by the judge.

10.2.1 Preliminary Facts Decided by Jury

The jury decides certain preliminary facts relating to whether
evidence is relevant at all. For example, before a purported
telephone conversation between the plaintiff and the defen-
dant is admitted into evidence, the identity of one of the
speakers on the call might need to be verified—otherwise,
the conversation would be irrelevant. Some preliminary
facts to be decided by the jury include whether evidence is
authentic, whether a person was acting as a party’s agent
in a breach of contract case, and whether a witness has
personal knowledge of the facts of their testimony.

a. Screened by Judge
Before such a question is brought before the jury, the judge
must determine that there is sufficient proof to support a
jury finding that the preliminary fact exists.

10.2.2 Preliminary Facts Decided by Judge

Facts affecting the competency of the evidence (meaning,
whether it is admissible under the rules of evidence) must be
determined by the trial judge. For example, the judge decides:

• Is a witness mentally competent to testify?

• Does a privilege exist?
• Does the evidence meet the requirements of a hearsay
exception?
a. Judge May Consider All Non-Privileged Evidence
The Federal Rules permit the trial judge to consider any
non-privileged relevant evidence when making a prelimi-
nary fact determination, even if such evidence would not be
admissible at trial. In other words, the judge is not bound
by the rules of evidence, except privilege. The judge can
consider hearsay evidence, unauthenticated evidence, and
so on. Remember, this evidence isn’t necessarily being intro-
duced at trial; the judge is simply considering it to determine
if other evidence should be admitted at trial.

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 EVIDENCE

HYPO 10A NOTES

Seeking to introduce former testimony by a lab technician
against a defendant in a retrial, the prosecution offers
the judge a note from a doctor saying the technician
is too sick to travel (and thus “unavailable” to testify).
Who decides admissibility? May whoever gets to decide
admissibility consider the note from the doctor?

b. Presence of Jury
Whether the jury should be excused during the preliminary
fact determination is generally within the discretion of the
trial judge. However, the jury must be excused if: (1) the
hearing involves the admissibility of a confession; (2) the
defendant in a criminal case is testifying at the hearing and
requests that the jury be excused; or (3) justice so requires.

10.2.3 Testimony by Accused Does Not Waive

Privilege Against Self-Incrimination
An accused may testify on any preliminary matter (for
example, circumstances surrounding an allegedly illegal
search) without subjecting themselves to testifying at trial
generally. Furthermore, testifying about the preliminary
matter does not subject the accused to cross-examination
about other issues in the case.

10.3 JUDICIAL NOTICE

Judicial notice is the recognition of a fact as true without
formal presentation of evidence.

10.3.1 Judicial Notice of Fact

a. Facts Appropriate for Judicial Notice
A court may take judicial notice of any fact that is “not subject
to reasonable dispute” because:
• The fact is generally known within the trial court’s juris-
diction (for example, New York City is located in the State
of New York), or
• The fact can be accurately and readily determined from
sources whose accuracy cannot reasonably be ques-
tioned (for example, October 10, 2017, was a Tuesday).
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EVIDENCE
Courts often take judicial notice of the reliability of well-es-
NOTES tablished scientific tests and principles (such as radar speed
tests, ballistics tests, and paternity blood tests) as a type of
“generally known” fact. The court will admit these test results
into evidence upon a showing that the test was properly
conducted.
b. Required on Party’s Request
Judicial notice can be taken at any stage of the proceedings
(and can even be taken for the first time on appeal). If a court
does not take judicial notice of a fact on its own accord, a
party must formally request that notice be taken and provide
the court with the necessary information. If the party does
this, the court is required to take judicial notice of the fact.
c. Conclusiveness
A judicially noticed fact is conclusive in a civil case but not in
a criminal case. In other words, in a civil case, the court must
instruct the jury to accept the judicially noticed fact as conclu-
sive. In a criminal case, the jury is instructed that it may, but is
not required to, accept the judicially noticed fact as conclusive.
d. “Adjudicative” and “Legislative” Facts
The Federal Rules, and thus their requirements, govern only
judicial notice of “adjudicative” facts (meaning, those that
relate to the particular case). “Legislative” facts (meaning,
those relating to legal reasoning and lawmaking), such as the
rationale behind the spousal privilege, need not be generally
known nor capable of indisputable verification to be judicially
noticed.

10.3.2 Judicial Notice of Law—Mandatory or Permissive

Courts must take judicial notice of federal and state law and
the official regulations of the forum state and the federal
government. Courts may take judicial notice of municipal
ordinances and private acts or resolutions of Congress or of
the local state legislature. Laws of foreign countries may also
be judicially noticed.

10.4 PRESUMPTIONS
A presumption is a rule that requires that a particular infer-
ence be drawn from an ascertained set of facts. It is a form
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 EVIDENCE
of substitute proof, because proof of the presumed fact is
rendered unnecessary once evidence has been introduced
NOTES
of the basic fact that gives rise to the presumption.

10.4.1 Common Presumptions

Below are some common rebuttable presumptions:
a. Mail Delivery
A letter, properly addressed, stamped, and mailed, is
presumed to have been delivered.
b. Death from 7-Year Absence
If a person is inexplicably absent for a continuous period of 7
years and they have not been heard from, they are presumed
dead.
c. Against Suicide
When cause of death is in dispute, there is a presumption in
civil cases that it was not suicide.
d. Legitimacy
Every person is presumed to be legitimate (meaning, born to
legally married parents).
e. Sanity
Every person is presumed sane in civil and criminal cases
until the contrary is shown.

f. Ownership of Car—Agent Driver

Proof of ownership of a motor vehicle creates the presump-
tion that the owner was the driver or that the driver was the
owner’s agent.

g. Chastity
Every person is presumed chaste and virtuous.

h. Regularity
It is presumed that persons acting in an official office are
properly performing their duties.
i. Continuance
Proof of the existence of a person or condition at a given
time raises a presumption that it continued for as long as it is
usual with things of that nature.
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EVIDENCE

j. Solvency
NOTES
A person is presumed solvent, and every debt is presumed
collectible.
k. Bailee’s Negligence
Proof of delivery of goods in good condition to a bailee and
failure of the bailee to return the goods in the same condition
create the presumption that the bailee was negligent.
l. Marriage
Upon proof of a marriage ceremony, a marriage is presumed
valid.

10.4.2 Effect of Presumption—Shifts Burden of

Production
Until rebutted, a presumption operates to shift the burden
of production to the party against whom the presumption
operates.

Remember that a presumption does not shift the

CMR burden of persuasion. The burden of persuasion
Exam Tip
remains on the same party throughout a trial.

10.4.3 Rebutting Presumptions in Civil Cases

A presumption is overcome or destroyed when the adversary
produces some evidence contradicting the presumed fact.
Once sufficient contrary evidence is admitted, the presump-
tion is of no force or effect.

10.4.4 No Mandatory Presumptions in Criminal

Cases
Special considerations apply when true presumptions arise
in the criminal context. The judge cannot instruct the jury that
it must find a presumed fact against the accused; the judge
must instruct them that they may regard the basic facts as
sufficient evidence of the presumed fact.

In a criminal case, if a presumed fact establishes

CMR guilt, is an element of the offense, or negates a
Exam Tip
defense, it must be proved beyond a reasonable
doubt.

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 EVIDENCE

10.4.5 Distinguish True Presumptions from NOTES

Inferences and Substantive Law
True presumptions are the rebuttable type discussed above.
Be careful not to confuse them with inferences and rules of
substantive law.

a. Permissible Inferences
A permissible inference may allow the party to meet their
burden of production (establish a prima facie case), but does
not shift the burden to the adversary. Examples include the
inference of negligence arising from res ipsa loquitur, the
inference that destroyed evidence was unfavorable to the
spoliator, the presumption of innocence in a criminal case,
and the inference of undue influence when a will’s drafter is
also the principal beneficiary.

b. Conclusive Presumptions
Because it cannot be rebutted, a conclusive presumption (for
example, that a child under age 7 cannot commit a crime) is
really a rule of substantive law.

10.4.6 Conflicting Presumptions

When 2 or more conflicting presumptions arise, the judge
should apply the presumption founded on the weightier
considerations of policy and logic.

10.4.7 Choice of Law Regarding Presumptions in

Civil Actions
Under the Federal Rules, state law governs the effect of
a presumption concerning a fact that is an element of a
claim or defense to which, under the Erie doctrine, the rule
of decision is supplied by state law. Erie is covered in your
Federal Civil Procedure materials.

10.5 RULE OF COMPLETENESS

Where part or all of a writing or recorded statement is intro-
duced into evidence, the adverse party may require the
proponent of the evidence to introduce any other part—or
any related writing or recorded statement—that ought in
fairness to be considered at the same time.

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EVIDENCE

NOTES EXAMPLE
In a lawsuit arising out of an auto accident, the plaintiff introduc-
es a portion of a tape recording in which an eyewitness said that
the defendant was driving well over the speed limit before the
accident. The defendant can require the plaintiff to immediately
introduce a later portion of the recording in which the eyewit-
ness said that the plaintiff suddenly swerved into the defendant’s
lane right before the accident.

10.6 LIMITED ADMISSIBILITY

Evidence may be admissible for one purpose but not another,
or admissible against one party but not another. In these
situations, the court must, upon timely request, restrict the
evidence to its proper scope and instruct the jury accordingly.
This is called a “limiting instruction.” Furthermore, the court
may exclude the evidence entirely if it determines that, even
with a limiting instruction, the probative value of the evidence
with respect to its legitimate purpose would be substantially
outweighed by danger of unfair prejudice with respect to its
incompetent purpose (in other words, the judge may exclude
the evidence if it fails the Rule 403 balancing test).

10.7 RULINGS ON EVIDENCE

10.7.1 Preserving Claim of Error for Appeal
A party may claim error in the court’s ruling if it affects a
substantial right of the party. If the court admitted evidence,
the party opposing its admission needs to make a timely
objection or move to strike the evidence. If the court
excluded evidence, the proponent of the evidence needs to
inform the court of the evidence’s substance by an offer of
proof, unless its substance was apparent from the context.
Once the court rules definitively on the record (either before
or at trial), the party doesn’t have to renew its objection or
offer of proof to preserve the claim of error for appeal.

a. Timing of Objections
Objections at trial should be made after the question, but
before the answer, if the question calls for inadmissible
information. Otherwise, a motion to strike must be made as

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 EVIDENCE
soon as an answer emerges as inadmissible. At a deposition,
objections to the form of a question, or to a testimonial privi-
NOTES
lege, should be made when the question is asked or it may
be waived. Objections based on the substance of a question
or answer may be postponed until the deposition is offered
in evidence.

Failure to object is deemed a waiver of any ground

CMR for objection. In other words, if no objection is
Exam Tip
made, otherwise inadmissible evidence will be
admitted.

b. Specificity of Objections
An objection may be either specific (for example, “Objection,
hearsay”) or general (“I object”). The Federal Rules call for
a specific objection unless the ground for the objection was
apparent from the context.

c. “Opening the Door”

A party who introduces evidence on a particular subject
thereby asserts its relevance and cannot complain if their
adversary offers evidence on the same subject.

d. Motion to Strike—Unresponsive Answers

If an answer is unresponsive but otherwise admissible, only
examining counsel can move to strike the answer; opposing
counsel cannot.

e. Exceptions
It is not necessary for a party to “except” from a trial ruling in
order to preserve the issue for appeal. This was a common
law rule that has been abolished.

f. Offers of Proof
An offer of proof may be made, disclosing the nature,
purpose, and admissibility of rejected evidence, to persuade
the trial court to hear the evidence and to preserve the
evidence for review on appeal. It may be made by witness
testimony, a lawyer’s description of what the evidence
would have been, or tangible evidence marked and offered.
The court can require the offer of proof to be made in
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EVIDENCE
question-and-answer form (meaning, the lawyer conducts
NOTES their examination of the witness so that the judge hears
exactly what the witness would have said in front of the jury).

g. Taking Notice of Plain Error

The court may take notice of a plain error affecting a substan-
tial right of a party, even if the claim of error wasn’t properly
preserved.

10.7.2 Judicial Power to Comment upon Evidence

A judge may comment on the weight of the evidence in
federal courts.

10.7.3 Shielding Jury from Inadmissible Evidence

To the extent practicable, the judge must conduct a jury trial
so that inadmissible evidence is not suggested to the jury by
any means.

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